State v. Penix

[This opinion has been published in Ohio Official Reports at 

.]




              THE STATE OF OHIO, APPELLEE, v. PENIX, APPELLANT.
                        [Cite as State v. Penix, 

.]
Appellate procedure—Application for reopening appeal from judgment and
        conviction based on clair of ineffective assistance of appellate counsel—
        Application denied when issue is res judicata by virtue of appellate court's
        opinion in direct appeal.
      (No. 94-2477—Submitted February 7, 1995—Decided May 24, 1995.)
          APPEAL from the Court of Appeals for Jackson County, No. 461.
                                  __________________
        {¶ 1} According to the court of appeals' opinion, appellant, Jesse Penix, was
indicted on two counts of kidnapping and one count of rape, felonious assault, and
auto theft. The trial court dismissed one kidnapping count and the auto theft count,
and a jury convicted appellant on the remaining counts.
        {¶ 2} On appeal, appellant's counsel made forty-one assignments of error,
but failed to argue them individually, and the court of appeals did not consider
them. Appellant filed a belated brief, pro se, in which he argued ineffective
assistance of trial and appellate counsel. The court of appeals found no evidence
of ineffectiveness of trial counsel and no prejudice resulting from counsel's actions,
and affirmed the convictions. State v. Penix (Dec. 23, 1983), Jackson App. No.
461, unreported.
        {¶ 3} Subsequently, it appears, in 1994, appellant sought to reopen the
appellate case, claiming ineffective assistance of appellate counsel under State v.
Murnahan (1992), 

, 

. The court of appeals held
that the issue was res judicata by virtue of its opinion in the direct appeal. Appellant
appealed to this court.
                                  __________________
                               SUPREME COURT OF OHIO




        Mark A. Ochsenbein, Jackson County Prosecuting Attorney, and Timothy
E. Forshey, Assistant Prosecuting Attorney, for appellee.
        Jesse Penix, pro se.
                                __________________
        Per Curiam.
        {¶ 4} The decision of the court of appeals is affirmed for the reasons stated
in its opinion.
                                                                 Judgment affirmed.
        MOYER, C.J., DOUGLAS, WRIGHT, RESNICK, F.E. SWEENEY, PFEIFER and
COOK, JJ., concur.
                                __________________




                                          2