1995 OHIO 329 - State v. Richey

[This opinion has been published in Ohio Official Reports at

73 Ohio St.3d 523

.]




             THE STATE OF OHIO, APPELLEE, v. RICHEY, APPELLANT.
                      [Cite as State v. Richey,

1995-Ohio-329

.]
Appellate procedure—Application for reopening appeal from judgment and
      conviction based on claim of ineffective assistance of appellate counsel—
      Application denied when applicant fails to show good cause for failing to file
      his application within ninety days after journalization of the appellate
      judgment as required by App.R. 26(B).
       (No. 95-374—Submitted June 21, 1995—Decided August 30, 1995.)
       APPEAL from the Court of Appeals for Putnam County, No. 12-87-2.
                                  __________________
        {¶ 1} Appellant, Kenneth T. Richey, was convicted of aggravated murder,
aggravated arson, breaking and entering, and child endangering, and sentenced to
death in 1987. The court of appeals affirmed the convictions and sentence. State
v. Richey (Dec. 28, 1989), Putnam App. No. 12-87-2, unreported,

1989 WL 156561

. On direct appeal as of right, we also affirmed. State v. Richey (1992),

64 Ohio St.3d 353

595 N.E.2d 915

, certiorari denied, Richey v. Ohio (1993),

507 U.S. 989

113 S.Ct. 1592

123 L.Ed.2d 157

.
        {¶ 2} In April 1994, Richey filed with the court of appeals an application to
reopen his appeal under App.R. 26(B), alleging ineffective assistance of his
appellate counsel.      The court of appeals denied the application, finding that
appellant had failed to establish good cause for not filing the application to reopen
within ninety days from the journalization of the appellate judgment, as required
by App.R. 26(B)(1) and (B)(2)(b). The court of appeals also held that appellant’s
twenty-two proposed assignments of error failed to raise any genuine issue as to
whether appellant was deprived of the effective assistance of counsel on appeal.
                               SUPREME COURT OF OHIO




          {¶ 3} Appellant appeals the denial to this court. Appellant also now submits
propositions of law XXIII through XXV, asserting he was denied the effective
assistance of appellate counsel in his appeal before this court.
                                 __________________
      Daniel R. Gerschutz, Putnam County Prosecuting Attorney, for appellee.
      Goodwin, Procter & Hoar, Paul E. Nemser (admitted pro hac vice), Kenneth
J. Parsigian (admitted pro hac vice), Patricia A. Lipoma and Lisa M. Tittemore;
Porter, Wright, Morris & Arthur and Scott E. North, for appellant.
                                 __________________
      Per Curiam.
          {¶ 4} We affirm the decision of the court of appeals for the reasons stated
in its opinion. Further, we reject appellant’s additional propositions of law XXIII
through XXV, asserting appellant was denied the effective assistance of counsel
before this court in his application for rehearing. Appellant’s 1992 appeal to this
court was not a first appeal as of right; therefore, he had no constitutional right to
counsel, and hence no constitutional right to effective assistance of counsel. See
State v. Buell (1994),

70 Ohio St.3d 1211

639 N.E.2d 110

.
                                                                   Judgment affirmed.
      MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER and COOK, JJ.,
concur.
      WRIGHT, J., dissents.
                                 __________________
      WRIGHT, J., dissenting.
          {¶ 5} I dissent for several reasons, most of which are included within Justice
Herbert R. Brown’s dissent in State v. Richey (1992),

64 Ohio St.3d 353, 373

595 N.E.2d 915, 931

.
                                 __________________




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