1996 OHIO 26 - State v. Cook

[This opinion has been published in Ohio Official Reports at

74 Ohio St.3d 524

.]




              THE STATE OF OHIO, APPELLEE, v. COOK, APPELLANT.
                        [Cite as State v. Cook,

1996-Ohio-26

.]
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 establish good cause for failure
        to file the motion within ninety days from journalization of the appellate
        judgment, as required by App.R. 26(B)(2)(b).
   (No. 95-1762—Submitted December 5, 1995—Decided February 14, 1996.)
     APPEAL from the Court of Appeals for Hamilton County, No. C-900676.
                                  __________________
        {¶ 1} Appellant, Derrick Cook, was convicted of aggravated murder,
aggravated robbery and kidnapping, and sentenced to death in 1990. The court of
appeals affirmed the convictions and sentence. State v. Cook (Apr. 8, 1992),
Hamilton App. No. C-900676, unreported,

1992 WL 74199

. On direct appeal as
of right, we also affirmed. State v. Cook (1992),

65 Ohio St.3d 516

605 N.E.2d 70

. Subsequently, Cook’s petitions for post-conviction relief were dismissed, and
the judgment of dismissal was affirmed by the court of appeals. State v. Cook (Dec.
29, 1995), Hamilton App. No. C-950090, unreported.
        {¶ 2} It is undisputed that in April 1995, Cook filed with the court of appeals
an application to reopen his appeal under App.R. 26(B) and State v. Murnahan
(1992),

63 Ohio St.3d 60

584 N.E.2d 1204

, alleging ineffective assistance of his
appellate counsel.      The court of appeals denied the application, finding that
appellant had failed to establish good cause for not filing the application to reopen
within ninety days from the journalization of the appellate judgment, as required
by App.R. 26(B)(2)(b).
                                  __________________
                                  SUPREME COURT OF OHIO




          Joseph T. Deters, Hamilton County Prosecuting Attorney, and Christian J.
Schaefer, Assistant Prosecuting Attorney, for appellee.
          David H. Bodiker, Ohio Public Defender, and John B. Heasley, Assistant
Public Defender, for appellant.
                                   __________________
          Per Curiam.
          {¶ 3} We affirm the decision of the court of appeals for the reasons stated
in its opinion.
                                                        Judgment affirmed.
          MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER and COOK, JJ.,
concur.
          WRIGHT, J., dissents.
                                   __________________




                                            2