State v. McGlone, 90CA191
Decision Date | 11 December 1992 |
Docket Number | No. 90CA191,90CA191 |
Citation | 615 N.E.2d 1139,83 Ohio App.3d 899 |
Parties | The STATE of Ohio, Appellee, v. McGLONE, Appellant. * |
Court | Ohio Court of Appeals |
Curtis McGlone, pro se. 1
This case originally came before us in the form of appellant's appeal as of right from four judgments of conviction and sentence. We affirmed those convictions in State v. McGlone (Mar. 12, 1992), Scioto App. No. 90CA1910, unreported, 1992 WL 50021. On April 10, 1992, appellant filed a "notice of appeal to the Supreme Court of Ohio." The Supreme Court of Ohio dismissed that appeal on August 12, 1992. State v. McGlone (1992), 64 Ohio St.3d 1439, 596 N.E.2d 469. On September 3, 1992 appellant filed a "motion for delayed reconsideration" and a separate brief in support. Normally an application to this court for reconsideration of one of its judgments must be filed "before the judgment or order of the court has been approved by the court and filed by the court with the clerk for journalization or within ten days after the announcement of the court's decision, whichever is later." App.R. 26. Clearly appellant has not filed for reconsideration within the time limit set out in App.R. 26. However, he cites State v Murnahan (1992), 63 Ohio St.3d 60, 584 N.E.2d 1204, as authority for the proposition that he is entitled to delayed reconsideration.
In Murnahan, the Supreme Court of Ohio held:
"Where the time period for reconsideration in the court of appeals and direct appeal to the Supreme Court has expired, a delayed claim of ineffective assistance of appellate counsel must first be brought in an application for delayed reconsideration in the court of appeals where the alleged error took place, pursuant to App.R. 26 and 14(B), and if delayed reconsideration is denied then the defendant may file for delayed appeal in the Supreme Court, pursuant to Section 8, Rule II of the Rules of Practice of the Supreme Court." Id., paragraph three of the syllabus; see, also, Tucker v. Collins (1992), 64 Ohio St.3d 77, 77-78, 591 N.E.2d 1241, 1241-1242; State v. Van Johnson (1992), 63 Ohio St.3d 306, 306-307, 587 N.E.2d 298, 298; State v. Meadows (1992), 63 Ohio St.3d 135, 585 N.E.2d 830. In reaching its holding in Murnahan, the court discussed the circumstances under which delayed reconsideration is appropriate:
(Emphasis added.) Murnahan, 63 Ohio St.3d at 66, 584 N.E.2d at 1209.
In his brief in support of delayed reconsideration, appellant states the following:
We find the emphasized portion of appellant's "Issues Presented for Review" to be an accurate summary of the issue presented in his brief. However, we note that there was no evidence that the "police officials" subjectively "highly suspect[ed]" the contents of the package was drugs.
Prior to granting reconsideration, we must determine whether there are substantive grounds for relief. Id. When a motion for delayed reconsideration is filed, we must first determine whether the motion asserts a colorable claim of ineffective assistance of appellate counsel.
Appellant contends he was denied effective assistance of appellate counsel due to that counsel's failure to assert as error appellant's trial counsel's failure to file a pretrial motion to suppress the cocaine. The ultimate issue to be resolved by such a motion involves the question of whether the officers executing the search warrant for food stamps were required to obtain an additional warrant to open the package containing the cocaine. In his brief on direct appeal, appellant asserted the following assignment of error:
In resolving this assignment of error, we held:
"A search warrant which authorizes an officer to search a home for contraband food stamp coupons authorizes the officer to search the entire area where those coupons might be found. See United States v. Ross (1982), 456 U.S. 798, 820 [102 S.Ct. 2157, 2170, 72 L.Ed.2d 572, 590]. The limiting factor is the size and nature of the item named in the warrant as the target of the search. See, id., at 824 [102 S.Ct. at 2172,...
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...The failure to make such a showing precludes an appellant from prevailing on his application. See State v. McGlone (1992).83 Ohio App.3d 899, 903, 615 N.E.2d 1139.II. Pre-Indictment Delay¶ 6 Murphy argues that he received ineffective assistance of appellate counsel because his attorney fail......
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...Spencer, trial counsel was not deficient in making what Spencer characterized as an untimely objection. See State v. McGlone , 83 Ohio App.3d 899, 615 N.E.2d 1139 (4th Dist.1992).{¶ 74} We overrule Spencer's fifth assignment of error.VII. CONCLUSION{¶ 75} Spencer's statutory speedy trial ri......
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State v. Dearth, 2010 Ohio 1847 (Ohio App. 4/23/2010)
...must be considered as well. First, the failure to file such motion is not per se ineffective assistance. State v. McGlone (1992), 83 Ohio App.3d 899, 903, 615 N.E.2d 1139; Defiance v. Cannon (1990), 70 Ohio App.3d 821, 826, 592 N.E.2d 884. Second, to establish prejudice, appellant must demo......
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State v. Lawrence E. Stewart
... ... file a motion to suppress is not per se indicative ... of ineffective assistance of counsel. State v ... McGlone (1992), 83 Ohio App.3d 899, 903; Defiance v ... Cannon (1990), 70 Ohio App.3d 821, 826; also see ... State v. Kuntz (Feb. 26, ... ...