State v. Wickline, 95-690

• Decision Date: 24 January 1996
• Docket Number: No. 95-690,95-690
• Citation: 74 Ohio St.3d 369,658 N.E.2d 1052
• Parties: The STATE of Ohio, Appellee, v. WICKLINE, Appellant.
• Court: Ohio Supreme Court

Page 369

74 Ohio St.3d 369

658 N.E.2d 1052

The STATE of Ohio, Appellee, v. WICKLINE, Appellant.

No. 95-690.

Supreme Court of Ohio.

Submitted Sept. 26, 1995.

Decided Jan. 24, 1996.

Appellant, William D. Wickline, was convicted of the aggravated murders of Christopher and Peggy Lerch, and was sentenced to death for the aggravated murder of Peggy Lerch. The court of appeals affirmed his convictions and death sentence. State v. Wickline (Dec. 20, 1988), Franklin App. No. 87AP-46, unreported, 1988 WL 137170. This court affirmed the court of appeals' judgment. State v. Wickline (1990), 50 Ohio St.3d 114, 552 N.E.2d 913.

On June 17, 1991, Wickline filed a petition for post-conviction relief in the Franklin County Court of Common Pleas. Among his sixty-two claims for relief, Wickline alleged ineffective assistance of appellate counsel. On February 19, 1992, this court held that ineffective-appellate-counsel claims are not cognizable in post-conviction actions. State v. Murnahan (1992), 63 Ohio St.3d 60, 584 N.E.2d 1204.

On May 8, 1992, the trial court dismissed Wickline's post-conviction petition in its entirety, and Wickline appealed. In that appeal, Wickline pressed his claim that ineffective assistance of counsel on direct appeal justified post-conviction relief, despite our explicit rejection of that contention in Murnahan. The court of appeals affirmed the trial court's dismissal of the post-conviction petition. State v. Wickline (June 28, 1994), Franklin App. No. 93APA10-1411, unreported, 1994 WL 314055. With respect to Wickline's ineffective-appellate-counsel claim, the court of appeals specifically held that Murnahan precluded such a claim in a proceeding for post-conviction relief. Wickline attempted to appeal this judgment, but we overruled his motion in support of jurisdiction. State v. Wickline (1994), 71 Ohio St.3d 1405, 641 N.E.2d 202, reconsideration denied (1994), 71 Ohio St.3d 1430, 642 N.E.2d 637.

According to the parties, on November 14, 1994, Wickline filed in the court of appeals an application to reopen the direct appeal of his conviction, pursuant to App.R. 26(B), alleging ineffective assistance of appellate counsel. The court of appeals denied the application because it had not been filed within ninety days of the effective date of amended App.R. 26(B), and Wickline had failed to show good cause for the untimely filing. This appeal followed.

Michael Miller, Franklin County Prosecuting Attorney, and Joyce S. Anderson, Assistant Prosecuting Attorney, for appellee.

David H. Bodiker, Ohio Public Defender, Dale A. Baich and William S. Lazarow, Assistant Public Defenders, for appellant.

PER CURIAM.

Under App.R. 26(B)(2)(b), an application for reopening requires "a showing of good cause for untimely filing if the application is filed more than ninety days after journalization of the appellate judgment." Here, the appellate judgment was journalized on December 20, 1988, but the appellant did not file his application for reopening until November 14, 1994. Thus, Wickline was required to show good cause for the delay.

Wickline seeks to excuse his late filing on the grounds that App.R. 26(B) did not exist at the time the appellate judgment was journalized. However, in State v. Reddick (1995), 72 Ohio St.3d 88, 90, 647 N.E.2d 784, 786, we held that "an applicant who seeks to reopen an appellate judgment journalized before July 1, 1993 may not simply rely on the fact that App.R. 26(B) did not exist within the ninety days following journalization of the appellate judgment, but must show good cause why he or she did not attempt to invoke the procedures available under former App.R. 26 and 14(B)."

Wickline claims that the court of appeals denied him due process by "retroactively" invoking the time limit of amended App.R. 26(B) to bar his claim. While the Ex Post Facto Clause of the United States Constitution applies only to legislative enactments, "due process places similar constraints on a court's power to apply precedent to cases arising before the precedent was announced." State v. Webb (1994), 70 Ohio St.3d 325, 330, 638 N.E.2d 1023, 1029, fn. 1; see, also, State v. Garner (1995), 74 Ohio St.3d 49, 57, 656 N.E.2d 623, 633.

Wickline contends that, until Murnahan, supra, motions to reopen an appeal were not an available remedy for ineffective assistance of appellate counsel. That is wrong; as Reddick amply demonstrates, Murnahan did not create a new remedy. But even if it had, retroactive application of Murnahan would not "punish as a crime an act previously committed, which was innocent when done; nor make more burdensome the punishment for a crime, after its commission; nor deprive one charged with crime of any defense available according to law at the time when the act was committed." Collins v. Youngblood (1990), 497 U.S. 37, 52, 110 S.Ct. 2715, 2724, 111 L.Ed.2d 30, 45. Thus, no issue exists under the Ex Post Facto Clause.

The failure of Wickline's claim under the Ex...