1996 OHIO 21 - State v. Reed

[This opinion has been published in Ohio Official Reports at

74 Ohio St.3d 534

.]




              THE STATE OF OHIO, APPELLEE, v. REED, APPELLANT.
                        [Cite as State v. Reed,

1996-Ohio-21

.]
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 exists as to whether applicant
        was prejudiced by any alleged deficient performance by his appellate
        counsel.
  (No. 95-1048—Submitted September 15, 1995—Decided February 14, 1996.)
  APPEAL from the Court of Appeals for Hamilton County, Nos. C-940315 and
                                        C-940322.
                                  __________________
        {¶ 1} Appellant, Darryl Reed, was convicted of drug abuse with a
specification of a prior offense of violence and was sentenced to prison for four to
ten years. The conviction was affirmed on appeal. State v. Reed (Oct. 28, 1994),
Hamilton App. Nos. C-940315 and C-940322, unreported. The only issue raised
on appeal was that the decision was manifestly against the weight of the evidence.
The appellate brief, filed by counsel appointed to handle the appeal, did not cite
any case law to support the lone assignment of error. Further, the brief made no
mention of the defendant-appellant’s request, denied by the trial court, to represent
himself at trial.
        {¶ 2} Subsequently, appellant, represented by new counsel from the Ohio
Public Defender’s Office, filed an application to reopen his appeal in the court of
appeals under App.R. 26(B).           Appellant alleged that appellate counsel was
ineffective for failing to argue that the trial court erred by denying appellant his
constitutional right to represent himself.          The court of appeals denied the
application to reopen, stating:
                            SUPREME COURT OF OHIO




       “Having reviewed appellant’s claims and the record, the Court finds no
genuine issue as to whether appellant was prejudiced by any alleged deficient
performance by his appellate counsel. See Strickland v. Washington (1984),

466 U.S. 668

104 S.Ct. 2052

80 L.Ed.2d 674

]; State v. Bradley (1989),

42 Ohio St.3d 136

538 N.E.2d 373

; App.R. 26 (B).”
       {¶ 3} Appellant filed an appeal to this court.
                              __________________
       Joseph T. Deters, Hamilton County Prosecuting Attorney, and L. Susan
Laker, Assistant Prosecuting Attorney, for appellee.
       David H. Bodiker, Ohio Public Defender, and Gloria Eyerly, Assistant
State Public Defender, for appellant.
                              __________________
       WRIGHT, J.
       {¶ 4} The only issue to be decided at this stage of the case is whether the
appellant has raised a “genuine issue” as to his claim that he was denied effective
assistance of appellate counsel, according to the dictates of App. R. 26 (B)(5). We
express no judgment on appellant’s contention that he was denied his constitutional
right to defend himself. Rather, we are concerned solely with the standard of
review to be applied when assessing a defendant’s request for reopening an appeal
under App.R. 26(B)(5).
       {¶ 5} In denying the application for reopening, the court of appeals applied
the Strickland standard for determining whether a defendant is entitled to a new
trial. While this court has not expressed its view on adopting that standard for
reopening appeals, the federal courts have used and now use Strickland to assess
requests in cases alleging ineffective assistance of appellate counsel. See Duhamel
v. Collins (C.A.5, 1992),

955 F.2d 962, 967

; Heath v. Jones (C.A.11, 1991),

941 F.2d 1126

; Cross v. United States (C.A.11, 1990),

893 F.2d 1287

. We hold that the
two-prong analysis found in Strickland is the appropriate level of review to



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                                  January Term, 1996




determine whether an appellant has raised a “genuine issue” in an application for
reopening an appeal under App.R.26(B)(5).
       {¶ 6} In the present case, appellant contends that his appellate counsel was
ineffective in failing to raise the trial court’s denial of his constitutional right to
represent himself. In Faretta v. California (1975),

422 U.S. 806

95 S.Ct. 2525

45 L.Ed.2d 562

, the United States Supreme Court held, without equivocation, that a
criminal defendant has a Sixth Amendment right to self-representation.              In
McKaskle v. Wiggins (1984),

465 U.S. 168, 177

104 S.Ct. 944, 950

79 L.Ed.2d 122, 133

, at fn.8, the court further held that the denial of the right to self-representation is reversible error per se and therefore that it may not be subjected
to the harmless-error analysis.
       {¶ 7} Upon examining appellant’s appellate counsel’s performance in its
entirety, we find that appellant has met both prongs of the Strickland standard. The
failure to raise a constitutional issue of such magnitude as self-representation
clearly constitutes deficient performance. It is equally clear that, since appellant
had a “reasonable probability” of success if this claim had been asserted, appellate
counsel’s failure to do so was prejudicial. Accordingly, appellant’s appeal must be
reopened so the court of appeals can determine whether Reed was denied his right
to represent himself. We reverse the judgment of the court of appeals and remand
with instructions to grant appellant’s application to reopen his appeal and consider
the merits of his claim.
                                                                   Judgment reversed
                                                                and cause remanded.
       MOYER, C.J., PFEIFER and COOK, JJ., concur.
       DOUGLAS, RESNICK and F.E. SWEENEY, JJ., dissent.
                               __________________




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