1994 OHIO 51 - State v. Smith

[This opinion has been published in Ohio Official Reports at

70 Ohio St.3d 646

.]




              THE STATE OF OHIO, APPELLEE, v. SMITH, APPELLANT.
                         [Cite as State v. Smith,

1994-Ohio-51

.]
Appellate procedure—App.R. 26(B)—Application for reopening appeal from
          judgment of conviction based on claim of ineffective assistance of appellate
          counsel—Application denied when appellant fails to show that appellate
          counsel was ineffective or that appellant was prejudiced by his counsel's
          performance.
    (No. 94-813—Submitted August 17, 1994—Decided November 9, 1994.)
       APPEAL from the Court of Appeals for Cuyahoga County, No. 54416.
                                  __________________
          {¶ 1} Appellant, Donald L. Smith, alleges he was convicted of one count of
aggravated robbery, one count of kidnapping, and one count of felonious assault
and was sentenced to three concurrent terms of imprisonment, two for ten to
twenty-five years and one for eight to fifteen years. He appealed, and the Court of
Appeals for Cuyahoga County affirmed the conviction by judgment entry of
November 10, 1988. In 1993, he applied to the court of appeals under App. R.
26(B) to reopen the appeal from the judgment of conviction and sentence, alleging
ineffective assistance of appellate counsel.          The court of appeals denied the
application on the basis that appellant failed to meet the standard for reopening his
appeal.     In other words, appellant failed to show that appellate counsel was
ineffective or that appellant was prejudiced by his counsel's performance.
Strickland v. Washington (1984),

466 U.S. 668

104 S. Ct. 2052

80 L.Ed.2d 674

.
Appellant appeals the denial to this court.
                                  __________________
          Stephanie Tubbs Jones, Cuyahoga County Prosecuting Attorney, and Karen
L. Johnson, Assistant Prosecuting Attorney, for appellee.
                            SUPREME COURT OF OHIO




       Donald L. Smith, pro se.
                               __________________
       Per Curiam.
       {¶ 2} The decision of the court of appeals is affirmed for the reasons stated
by the court of appeals.
                                                                Judgment affirmed.
       MOYER, C.J., A.W. SWEENEY, DOUGLAS, RESNICK, F.E. SWEENEY and
PFEIFER, JJ., concur.
       WRIGHT, J., dissents.
                               __________________




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