State v. Murnahan
Decision Date | 19 February 1992 |
Docket Number | 90-2288,Nos. 90-2287,s. 90-2287 |
Citation | 63 Ohio St.3d 60,584 N.E.2d 1204 |
Parties | The STATE of Ohio, Appellant, v. MURNAHAN, Appellee. |
Court | Ohio Supreme Court |
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 trial court required the plaintiff-appellant state of Ohio to elect 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. 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.
The issue certified to this court is whether a claim of ineffective assistance of appellate 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:
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:
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 "), that claims of ineffective assistance of appellate counsel could not be brought in state habeas corpus proceedings. Furthermore, in In re Petition of Brown (1990), 49 Ohio St.3d 222, 223, 551 N.E.2d 954, 955, we provided insight into the proper remedy for claimants asserting ineffective assistance of appellate counsel who are barred from seeking habeas corpus relief, by stating:
The opinion in Brown, supra, seemingly allowed for a direct appeal as of right to this court for claims of ineffective assistance of appellate counsel. This premise is supported by the language contained in State v. Roberts (1982), 1 Ohio St.3d 36, 38-39, 1 OBR 71, 73, 437 N.E.2d 598, 600-601, where we denied a post-conviction claim premised upon a court of appeals' error in resentencing a defendant, and ultimately held, after applying a res judicata analysis, that:
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