1996 OHIO 18 - State v. Higgins

[This opinion has been published in Ohio Official Reports at

74 Ohio St.3d 410

.]




            THE STATE OF OHIO, APPELLEE, v. HIGGINS, APPELLANT.
                      [Cite as State v. Higgins,

1996-Ohio-18

.]
Appellate procedure—Application for reopening appeal from judgment and
        conviction based on claim of ineffective assistance of appellate counsel—
        Application denied when no genuine issue indicating ineffective assistance
        of appellate counsel exists.
   (No. 95-1892—Submitted November 14, 1995—Decided January 31, 1996.)
      APPEAL from the Court of Appeals for Montgomery Count, No. 14335.
                                  __________________
        {¶ 1} Appellant, Valerie Higgins, pled no contest to aggravated trafficking
in cocaine over one hundred times the bulk amount and was found guilty and
sentenced to fifteen years to life imprisonment, as required by R.C. 2925.03(C)(9).
Upon appeal, appellant’s counsel filed an Anders [Anders v. California (1967),

386 U.S. 738

87 S.Ct. 1396

18 L.Ed.2d 493

] brief “asserting an inability to find any
possibly meritorious issues for appellate review.” The court of appeals gave
appellant the opportunity to file a pro se brief, but she did not do so. The court of
appeals then affirmed the conviction, agreeing with counsel that there were no
meritorious issues. State v. Higgins (Dec. 14, 1994), Montgomery App. No. 14335,
unreported.
        {¶ 2} Subsequently, appellant filed an application to reopen her appeal
under App.R. 26(B). She claimed ineffective assistance of appellate counsel for
failing “to argue that her plea of no contest was defective for the reason that the
trial court failed to advise her that the minimum period of incarceration of fifteen
years was required to be served as actual incarceration.” The court then examined
the transcript; found that the trial court had informed appellant of the maximum
period of incarceration, as required by Crim.R. 11(C)(2), and that appellant and her
                             SUPREME COURT OF OHIO




counsel had executed an entry of waiver and plea that stated that the minimum term
of incarceration was fifteen years of actual incarceration; and denied the application
to reopen. Appellant appeals to this court.
                               __________________
       Mathias H. Heck, Jr., Montgomery County Prosecuting Attorney, and
Carley J. Ingram, Assistant Prosecuting Attorney, for appellee.
       Valerie Higgins, pro se.
                               __________________
       Per Curiam.
       {¶ 3} Having examined the same portions of the record as the court of
appeals, we come to the same conclusion. The trial court advised appellant of the
maximum term of incarceration, as required by Crim.R. 11(C)(2), and appellant
and her counsel executed the entry of waiver and plea, which stated the period of
actual incarceration. Accordingly, there is no genuine issue indicating ineffective
assistance of appellate counsel, and the judgment of the court of appeals is affirmed.
                                                                 Judgment affirmed.
       MOYER, C.J., DOUGLAS, WRIGHT, RESNICK, F.E. SWEENEY, PFEIFER and
COOK, JJ., concur.
                               __________________




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