[This opinion has been published in Ohio Official Reports at
74 Ohio St.3d 369.]
THE STATE OF OHIO, APPELLEE, v. WICKLINE, APPELLANT.
[Cite as State v. Wickline, 1996-Ohio-19.]
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 court of
appeals’ decision affirming the conviction, as required by App.R. 26(B).
(No. 95-690—Submitted September 26, 1995—Decided January 24, 1996.)
APPEAL from the Court of Appeals for Franklin County, No. 87AP-46.
__________________
{¶ 1} Appellant, William D. Wickline, was convicted of the aggravated
murders of Christopher and Peggy Lerch, and was sentenced to death for the
aggravated murder of Peggy Lerch. The court of appeals affirmed his convictions
and death sentence. State v. Wickline (Dec. 20, 1988), Franklin App. No. 87AP-
46, unreported. This court affirmed the court of appeals’ judgment. State v.
Wickline (1990), 50 Ohio St.3d 114,
552 N.E.2d 913.
{¶ 2} On June 17, 1991, Wickline filed a petition for post-conviction relief
in the Franklin County Court of Common Pleas. Among his sixty-two claims for
relief, Wickline alleged ineffective assistance of appellate counsel. On February
19, 1992, this court held that ineffective-appellate-counsel claims are not
cognizable in post-conviction actions. State v. Murnahan (1992), 63 Ohio St.3d
60,
584 N.E.2d 1204.
{¶ 3} On May 8, 1992, the trial court dismissed Wickline’s post-conviction
petition in its entirety, and Wickline appealed. In that appeal, Wickline pressed his
claim that ineffective assistance of counsel on direct appeal justified post-conviction relief, despite our explicit rejection of that contention in Murnahan. The
SUPREME COURT OF OHIO
court of appeals affirmed the trial court’s dismissal of the post-conviction petition.
State v. Wickline (June 28, 1994), Franklin App. No. 93APA10-1411, unreported,
1994 WL 314055. With respect to Wickline’s ineffective-appellate-counsel claim,
the court of appeals specifically held that Murnahan precluded such a claim in a
proceeding for post-conviction relief. Wickline attempted to appeal this judgment,
but we overruled his motion in support of jurisdiction. State v. Wickline (1994),
71
Ohio St.3d 1405,
641 N.E.2d 202, reconsideration denied (1994),
71 Ohio St.3d
1430,
642 N.E.2d 637.
{¶ 4} According to the parties, on November 14, 1994, Wickline filed in the
court of appeals an application to reopen the direct appeal of his conviction,
pursuant to App.R. 26(B), alleging ineffective assistance of appellate counsel. The
court of appeals denied the application because it had not been filed within ninety
days of the effective date of amended App.R. 26(B), and Wickline had failed to
show good cause for the untimely filing. This appeal followed.
__________________
Michael Miller, Franklin County Prosecuting Attorney, and Joyce S.
Anderson, Assistant Prosecuting Attorney, for appellee.
David H. Bodiker, Ohio Public Defender, Dale A. Baich and William S.
Lazarow, Assistant Public Defenders, for appellant.
__________________
Per Curiam.
{¶ 5} Under App.R. 26(B)(2)(b), an application for reopening requires “a
showing of good cause for untimely filing if the application is filed more than
ninety days after journalization of the appellate judgment.” Here, the appellate
judgment was journalized on December 20, 1988, but the appellant did not file his
application for reopening until November 14, 1994. Thus, Wickline was required
to show good cause for the delay.
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January Term, 1996
{¶ 6} Wickline seeks to excuse his late filing on the grounds that App.R.
26(B) did not exist at the time the appellate judgment was journalized. However,
in State v. Reddick (1995), 72 Ohio St.3d 88, 90,
647 N.E.2d 784, 786, we held that
“an applicant who seeks to reopen an appellate judgment journalized before July 1,
1993 may not simply rely on the fact that App.R. 26(B) did not exist within the
ninety days following journalization of the appellate judgment, but must show good
cause why he or she did not attempt to invoke the procedures available under former
App.R. 26 and 14(B).”
{¶ 7} Wickline claims that the court of appeals denied him due process by
“retroactively” invoking the time limit of amended App.R. 26(B) to bar his claim.
While the Ex Post Facto Clause of the United States Constitution applies only to
legislative enactments, “due process places similar constraints on a court’s power
to apply precedent to cases arising before the precedent was announced.” State v.
Webb (1994), 70 Ohio St.3d 325, 330,
638 N.E.2d 1023, 1029, fn. 1; see, also, State
v. Garner (1995),
74 Ohio St.3d 49, 57,
656 N.E.2d 623, 633.
{¶ 8} Wickline contends that, until Murnahan, supra, motions to reopen an
appeal were not an available remedy for ineffective assistance of appellate counsel.
That is wrong; as Reddick amply demonstrates, Murnahan did not create a new
remedy. But even if it had, retroactive application of Murnahan would not “punish
as a crime an act previously committed, which was innocent when done; nor make
more burdensome the punishment for a crime, after its commission; nor deprive
one charged with crime of any defense available according to law at the time when
the act was committed.” Collins v. Youngblood (1990),
497 U.S. 37, 52,
110 S.Ct.
2715, 2724,
111 L.Ed.2d 30, 45. Thus, no issue exists under the Ex Post Facto
Clause.
{¶ 9} The failure of Wickline’s claim under the Ex Post Facto Clause is
fatal to his due process claim. A state court may apply its own precedents
retroactively, so long as the application does not amount to an ex post facto law.
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SUPREME COURT OF OHIO
“A state in defining the limits of adherence to precedent may make a choice for
itself between the principle of forward operation and that of relation backward.”
Great N. Ry. Co. v. Sunburst Oil & Refining Co. (1932), 287 U.S. 358, 364,
55 S.Ct.
145, 148,
77 L.Ed. 360, 366 (Cardozo, J.).
{¶ 10} Wickline claims App.R. 26(B)’s good-cause requirement denies him
due process, because litigants with valid claims of ineffective appellate counsel are
denied an “effective” remedy for the constitutional violation. This amounts to a
contention that a litigant’s delay, no matter how long, must be forgiven even though
there was no valid reason for the delay. We reject that contention.
{¶ 11} Wickline also claims the ninety-day deadline discriminates between
rich and poor appellants because the latter will be unable to obtain new counsel in
time to discover their former counsel’s errors within ninety days of judgment. But
Wickline lacks standing to raise this issue. He has never claimed that he was unable
to file a timely application due to indigency. In fact, the court of appeals stated that
“[a]ppellant has been represented by counsel throughout the course of these
proceedings.”
{¶ 12} In another proposition of law, Wickline asserts his substantive claim
of ineffective appellate counsel. The court of appeals never reached that claim, and
it is not properly before us. Finally, Wickline complains that the court of appeals
ordered eighty-nine pages of his attorney’s ninety-one-page sworn statement to be
stricken.1 Because the application was untimely filed, this issue is moot.
{¶ 13} 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.
1. Pursuant to App.R. 26(B)(2)(d), Wickline attached to his application a ninety-one-page affidavit
executed by his present counsel. This affidavit argued in detail the merits of certain arguments
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January Term, 1996
allegedly forgone by his original appellate counsel in 1988. The court of appeals ordered that eighty-nine pages of this affidavit be stricken.
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