1994 OHIO 68 - State v. Malin

[This opinion has been published in Ohio Official Reports at

71 Ohio St.3d 285

.]




             THE STATE OF OHIO, APPELLEE, v. MALIN, APPELLANT.
                        [Cite as State v. Malin,

1994-Ohio-68

.]
Appellate procedure—App.R. 26(B)—Application for reopening appeal from
        judgment and conviction based on claim of ineffective assistance of
        appellate counsel—Application denied when not timely filed.
   (No. 94-1755—Submitted October 24, 1994—Decided December 21, 1994.)
       APPEAL from the Court of Appeals for Cuyahoga County, No. 37389.
                                  __________________
        {¶ 1} It is undisputed that appellant, Chester W. Malin, was convicted of
aggravated murder in 1976 and sentenced to life imprisonment. He appealed, and
the court of appeals affirmed the conviction. State v. Malin (Dec. 28, 1978),
Cuyahoga App. No. 37389, unreported. Appellant's motion for leave to appeal to
this court was overruled. State v. Malin (May 10, 1979), case No. 79-301. The
Supreme Court of the United States denied certiorari. Malin v. Ohio (1979),

444 U.S. 936

100 S.Ct. 284

62 L.Ed.2d 195

. Appellant applied to the court of appeals
to reopen the appeal from the judgment of conviction pursuant to App. R. 26(B),
alleging ineffective assistance of appellate counsel because his appellate counsel
failed to assert an abuse of discretion by the trial court by not admitting a polygraph
examination. The court of appeals denied the application on the basis that the
application was not timely filed, and appellant had not shown good cause for the
delay, and that the issue was res judicata. Appellant appeals the denial to this court.
                                  __________________
        Stephanie Tubbs Jones, Cuyahoga County Prosecuting Attorney, and Elaine
Welsh, Assistant Prosecuting Attorney, for appellee.
        Chester W. Malin, pro se.
                                  __________________
                            SUPREME COURT OF OHIO




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




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