1996 OHIO 258 - State v. Richardson

[This opinion has been published in Ohio Official Reports at

74 Ohio St.3d 235

.]




          THE STATE OF OHIO, APPELLEE, v. RICHARDSON, APPELLANT.
                    [Cite as State v. Richardson,

1996-Ohio-258

.]
Appellate procedure—Application for reopening appeal from judgment and
        conviction based on claim of ineffective assistance of appellate counsel—
        Application denied when claim barred by res judicata.
   (No. 95-844—Submitted September 12, 1995—Decided January 10, 1996.)
       APPEAL from the Court of Appeals for Cuyahoga County, No. 59803.
                                  __________________
        {¶ 1} Appellant, Lemuel Richardson, was convicted of one count of
aggravated burglary with specifications and one count of theft with specifications.
Appellant’s convictions were affirmed by the Eighth District Court of Appeals in
State v. Richardson (Jan. 16, 1992), Cuyahoga App. No. 59803, unreported,

1992 WL 6051

. Appellant then filed a pro se appeal to this court that was denied. State
v. Richardson (1992),

65 Ohio St.3d 1465

602 N.E.2d 1173

.
        {¶ 2} On November 2, 1993, appellant filed an application for delayed
reconsideration (treated as an application for reopening) in the court of appeals.
The court of appeals denied the application, State v. Richardson (Sept, 20, 1994),
Cuyahoga App. No. 59803, unreported, holding that appellant failed to establish
good cause for not filing the application within ninety days of the decision in the
direct appeal; that the claims were barred by res judicata; and, in any case, that the
issues raised had no merit. It is undisputed that, on February 10, 1995, appellant
filed a second application for reopening pursuant to App.R. 26(B). On March 20,
1995, the court of appeals denied the application, holding that the doctrine of res
judicata applied. Appellant appeals that decision to this court.
                                  __________________
                            SUPREME COURT OF OHIO




       Stephanie Tubbs Jones, Cuyahoga County Prosecuting Attorney, and
Sherry F. McCreary, Assistant Prosecuting Attorney, for appellee.
       David H. Bodiker, Ohio Public Defender, and Kort Gatterdam, Assistant
State Public Defender, for appellant.
                              __________________
       Per Curiam.
       {¶ 3} We affirm the judgment of the court of appeals. We find no injustice
in applying the doctrine of res judicata on these facts. Since the date of the
appellate decision sought to be reopened, appellant has appealed directly to this
court and filed one application for reopening. Neither App.R. 26(B) nor State v.
Murnahan (1992),

63 Ohio St.3d 60

584 N.E.2d 1204

, provides for second and
subsequent applications for reopening. Therefore, the court of appeals did not err
in finding that the matter of ineffective assistance of appellate counsel is now res
judicata.
                                                                Judgment affirmed.
       MOYER, C.J., DOUGLAS, WRIGHT, RESNICK, F.E. SWEENEY, PFEIFER and
COOK, JJ., concur.
                              __________________




                                         2