1996 OHIO 15 - State v. Sibert

[This opinion has been published in Ohio Official Reports at

74 Ohio St.3d 342

.]




             THE STATE OF OHIO, APPELLEE, v. SIBERT, APPELLANT.
                        [Cite as State v. Sibert,

1996-Ohio-15

.]
Appellate procedure—Application for reopening appeal from judgment and
        conviction based on claim of ineffective assistance of appellate counsel—
        Application denied when applicant not prejudiced by counsel’s failure to
        file a motion to suppress certain incriminating statements made to the
        police.
   (No. 95-1396—Submitted September 26, 1995—Decided January 17, 1996.)
       APPEAL from the Court of Appeals for Adams County, No. 93CA562.
                                  __________________
        {¶ 1} Appellant, Jeffrey B. Sibert, was convicted of three counts of rape
with force specifications and sentenced to two consecutive terms of life
imprisonment and to a third such term concurrent with the other two.               The
convictions were affirmed on appeal. State v. Sibert (1994),

98 Ohio App.3d 412

648 N.E.2d 861

.
        {¶ 2} Subsequently, appellant filed an application to reopen his appeal
pursuant to App.R. 26(B), alleging ineffective assistance of appellate counsel
because appellate counsel did not raise the issue that as trial counsel he failed to
file a motion to suppress certain incriminating statements appellant had made to a
police officer. The court of appeals examined the record and, inter alia, held that
even if it had been error not to file a motion to suppress, appellant had not been
prejudiced because the three victims all testified at trial.
        {¶ 3} Appellant appeals from the denial of his application to reopen.
                                  __________________
        Greg Carroll, Adams County Prosecuting Attorney, for appellee.
        Jeffrey B. Sibert, pro se.
                            SUPREME COURT OF OHIO




                              __________________
       Per Curiam.
       {¶ 4} The judgment of the court of appeals is affirmed for the reason stated
above. On appeal, appellant alleges failure of trial counsel to present the issue of
his mental competence. Apparently, the issue was not raised in the court of appeals;
therefore, we will not consider it for the first time on appeal. Zakany v. Zakany
(1984),

9 Ohio St.3d 192, 193

, 9 OBR 505, 506-507,

459 N.E.2d 870, 872

.
                                                                Judgment affirmed.
       MOYER, C.J., DOUGLAS, WRIGHT, RESNICK, F.E. SWEENEY, PFEIFER and
COOK, JJ., concur.
                              __________________




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