1996 OHIO 10 - State v. Carroll

[This opinion has been published in Ohio Official Reports at

74 Ohio St.3d 229

.]




            THE STATE OF OHIO, APPELLEE, v. CARROLL, APPELLANT.
                       [Cite as State v. Carroll,

1996-Ohio-10

.]
Appellate procedure—Application for reopening appeal from judgment and
        conviction based on claim of ineffective assistance of appellate counsel—
        Application denied when no colorable issue of ineffective assistance of
        appellate counsel raised.
   (No. 95-1030—Submitted September 12, 1995—Decided January 10, 1996.)
  APPEAL from the Court of Appeals for Lorain County, Nos. 93CA005775 and
                                      94CA005814.
                                  __________________
        {¶ 1} Appellant, Jack Lynn Carroll, was convicted of four counts of
aggravated drug trafficking, and one count each of drug abuse, having weapons
under disability, unlawful possession of dangerous ordnance, possession of drug
abuse paraphernalia, and permitting drug abuse. The Court of Appeals for Lorain
County affirmed appellant’s convictions, but reversed the trial court’s order
requiring forfeiture of appellant’s residence and remanded the case for the trial
court to ascertain whether the forfeiture constituted an excessive fine under the state
and federal Constitutions.
        {¶ 2} Appellant filed a timely application to reopen his direct appeal,
alleging numerous issues of ineffective assistance of appellate counsel. The court
of appeals thoroughly reviewed the application for reopening pursuant to App. R.
26(B), held that appellant had failed to raise a colorable issue of ineffective
assistance of appellate counsel, and denied appellant’s application. Appellant now
appeals to this court.
                                  __________________
                             SUPREME COURT OF OHIO




       Gregory A. White, Lorain County Prosecuting Attorney, and Lisa A. Locke
Graves, Assistant Prosecuting Attorney, for appellee.
       Jack Lynn Carroll, pro se.
                               __________________
       Per Curiam.
       {¶ 3} We affirm the decision of the court of appeals. Appellant principally
argues that his appellate counsel had a conflict of interest because she shared office
space with his trial counsel. The court of appeals found no conflict of interest. We
agree. Accordingly, appellant has not shown the deficient performance of counsel
and resultant prejudice required under Strickland v. Washington (1984),

466 U.S. 668

104 S. Ct. 2052

80 L. Ed. 2d 674

, nor has he shown the presumption of
prejudice which arises when a defendant demonstrates that counsel actively
represented conflicting interests and that the actual conflict of interest adversely
affected counsel’s performance, as required under Cuyler v. Sullivan (1980),

446 U.S. 335

100 S. Ct. 1708

64 L. Ed. 2d 333

. See, also, State v. Haberek (1988),

47 Ohio App. 3d 35, 38

546 N. E. 2d 1361, 1365

.
       {¶ 4} In his third proposition of law, appellant raises several issues he
alleges as trial errors, but without relating them to the effective assistance of
counsel issue. Applications under App. R. 26(B) relate only to the issue of the
effective assistance of appellate counsel. Therefore, these issues have no merit.
       {¶ 5} In his fourth proposition of law, appellant argues that App. R. 26(B)
denies him due process because no appellate counsel was appointed and a ten-page
limit was imposed on briefs in the application for reopening. These issues were
apparently not raised in the court of appeals, and we do not consider them for the
first time on appeal. State v. Williams (1977),

51 Ohio St. 2d 112

, 5 O.O. 3d 98,

364 N. E. 2d 1364

, paragraph two of the syllabus.
       {¶ 6} The judgment of the court of appeals denying the application to
reopen is affirmed.




                                          2
                                January Term, 1996




                                                        Judgment affirmed.
        MOYER, C.J., DOUGLAS, WRIGHT, RESNICK, F.E. SWEENEY and PFEIFER,
JJ., concur.
        COOK, J., not participating.
                               __________________




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