State v. Murnahan, s. 90-2287

• Court: United States State Supreme Court of Ohio
• Citation: 63 Ohio St.3d 60,584 N.E.2d 1204
• Docket Number: 90-2288,Nos. 90-2287,s. 90-2287
• Parties: The STATE of Ohio, Appellant, v. MURNAHAN, Appellee.
• Decision Date: 19 February 1992

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63 Ohio St.3d 60 584 N.E.2d 1204 The STATE of Ohio, Appellant,
v.
MURNAHAN, Appellee. Nos. 90-2287, 90-2288. Supreme Court of Ohio. Submitted Nov. 6, 1991.
Decided Feb. 19, 1992. SYLLABUS BY THE COURT

1. Claims of ineffective assistance of appellate counsel are not cognizable in post-conviction proceedings pursuant to R.C. 2953.21.

2. Claims of ineffective assistance of appellate counsel may be raised in an ap plication for reconsideration in the court of appeals or in a direct appeal to the Supreme Court pursuant to Section 2(B)(2)(a)(iii), Article IV of the Ohio C onstitution. (In re Petition of Brown [1990], 49 Ohio St.3d 222, 223, 551 N.E. 2d 954, 955; Manning v. Alexander [1990], 50 Ohio St.3d 127, 553 N.E.2d 264, f ollowed.)

3. 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 assist ance of appellate counsel must first be brought in an application for delayed r econsideration in the court of appeals where the alleged error took place, purs uant 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.

Plaintiff-appellee, Arnold R. Murnahan, was convicted in the Court of Common Pleas of Clark County of two counts of involuntary manslaughter and two counts of aggravated vehicular homicide with specifications. ¹ The

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trial court required the plaintiff-appellant state of Ohio to elect [584 N.E.2d 1206] among two of the four counts for purposes of sentencing. The state decided that Murnahan should be sentenced under counts two (with specifications) and three. Therefore, he was sentenced to consecutive terms of three to five years for one count of aggravated vehicular homicide and five to ten years for involuntary manslaughter, and his driving privileges were permanently revoked.

On direct appeal, appointed counsel for Murnahan filed an "ANDERS BRIEF" (Anders v. California [1967], 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493) based on the conclusion that any legal issues presented were meritless. The court of appeals withdrew appointed counsel pursuant to the Anders request and granted Murnahan thirty additional days to file a brief on his own behalf. After the thirty days had run without a brief being filed, the court found that "an examination of the record reveals no apparent error at trial" and dismissed the appeal on September 26, 1986.

On July 24, 1987, Murnahan filed a petition for post-conviction relief in the trial court. On May 19, 1989, the state filed a motion for summary judgment. The trial court determined, following an evidentiary hearing, in a July 13, 1989 entry, that the state's motion for summary judgment on defendant's petition should be granted since the issue raised dealt with effective assistance of appellate counsel, which was not applicable in post-conviction proceedings. ²

On appeal from the denial of post-conviction relief, Murnahan asserted that claims of ineffective assistance of counsel were cognizable in post-conviction proceedings and he was denied effective assistance of counsel in his first appeal as of right. The court of appeals held that claims of ineffective assistance of appellate counsel are cognizable in post-conviction proceedings and, therefore, reversed the trial court's dismissal of Murnahan's petition.

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Rather than remanding the matter, the court determined that former appellate counsel's brief and her withdrawal before the court of appeals had conducted an independent review of the record did not comport with the dictates of Anders v. California, supra. The court reinstated Murnahan's direct appeal and appointed counsel to represent him.

The court of appeals found its decision to be in conflict with the decisions of the courts of appeals in the following cases: State v. Simpson (Feb. 18, 1987), Hamilton App. No. C-860346, unreported; State v. Poole (June 4, 1990), Allen App. No. 1-89-24, unreported, 1990 WL 82550; State v. Farmer (Nov. 26, 1984), Stark App. No. CA-6460, unreported, 1984 WL 7583; State v. Wilson (June 9, 1989), Lucas App. No. L-88-270, unreported, 1989 WL 61660; State v. Mays (Jan. 25, 1990), Cuyahoga App. No. 56441, unreported, 1990 WL 4480; and State v. Davis (May 11, 1984), Trumbull App. No. 3185, unreported, 1984 WL 7351. Consequently, it certified the record of this case to this court for review and final determination.

Stephen A. Schumaker, Pros. Atty., and David E. Smith, Springfield, for appellant.

Randall M. Dana, Ohio Public Defender, Barbara A. Farnbacher and Kenneth R. Spiert, Columbus, for appellee.

Lee I. Fisher, Atty. Gen., and Jack W. Decker, Columbus, urging reversal, for amicus curiae, Atty. Gen., of Ohio.

H. Fred Hoefle, Cincinnati, urging affirmance, for amicus curiae, Ohio Ass'n of Criminal Defense Lawyers.

HOLMES, Justice.

The issue certified to this court is whether a claim of ineffective assistance of appellate[584 N.E.2d 1207] counsel is cognizable in post-conviction proceedings brought pursuant to R.C. 2953.21. For the reasons that follow, we answer such query in the negative.

It is asserted by Murnahan that R.C. 2953.21 is the appropriate vehicle by which to bring claims of ineffective assistance of appellate counsel. R.C. 2953.21 provides in pertinent part:

"(A) Any person convicted of a criminal offense or adjudged delinquent claiming that there was such a denial or infringement of his rights as to render the judgment void or voidable under the Ohio Constitution or the Constitution of the United States, may file a petition at any time in the court which imposed sentence, stating the grounds for relief relied upon, and asking the court to vacate or set aside the judgment or sentence or to grant other

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appropriate relief. The petitioner may file such supporting affidavit and other documentary evidence as will support his claim for relief.

" * * *

"(G) If the court finds grounds for granting relief, it shall enter a judgment that vacates and sets aside the judgment in question, and, in the case of a prisoner in custody, shall discharge or resentence him or grant a new trial as may appear appropriate. * * * "

In addressing the same issue presented in this case, the Eighth District Court of Appeals in State v. Mitchell (1988), 53 Ohio App.3d 117, 118-119, 559 N.E.2d 1370, 1371-1372, denied post-conviction relief to a defendant claiming ineffective assistance of appellate counsel and reasoned:

"The appellant argues that post-conviction remedies provided by R.C. 2953.21 are available to redress the denial of constitutionally ensured rights at the appellate level. We disagree.

"Should Ohio's statute providing for post-conviction remedies be applicable to appellate court decisions, either of two patently unacceptable results follows: in effect, the criminal defendant would either be petitioning the trial court (1) to render its own judgment of conviction void or voidable due to the denial of constitutional guarantees at the appellate level, or (2) to render the judgment of the superior appellate court void or voidable due to the denial of constitutional guarantees at the appellate level. We find that neither of these results is acceptable; both are clearly outside the purview of the Ohio Legislature in its enactment of R.C. 2953.21 et seq. An appellate court decision found to be constitutionally wanting by a trial court will not render a trial court's judgment of conviction void or voidable; a trial court is not empowered to render an appellate court decision void or voidable."

However, in Manning v. Alexander (C.A.6, 1990), 912 F.2d 878 ("Manning II "), the United States Court of Appeals, Sixth Circuit, found Ohio law undefined on this question and in the absence of any guidance from this court decided that for purposes of the exhaustion requirements under Section 2254, Title 28, U.S.Code, a claim of ineffective assistance of appellate counsel could be properly maintained in post-conviction proceedings.

In a case analogous to the one at bar we decided in Manning v. Alexander (1990), 50 Ohio St.3d 127, 553 N.E.2d 264 ("Manning I...