State v. Williams

[This opinion has been published in Ohio Official Reports at 

.]




           THE STATE OF OHIO, APPELLEE, v. WILLIAMS, APPELLANT.
                     [Cite as State v. Williams, 

.]
Appellate procedure—Application for reopening appeal from judgment and
        conviction based on claim of ineffective assistance of appellate counsel—
        Claims asserting ineffective assistance of appellate counsel in capital
        cases must be raised in the first appeal as of right in the Supreme Court.
    (No. 95-906—Submitted November 7, 1995—Decided February 7, 1996)
       APPEAL from the Court of Appeals for Cuyahoga County, No. 47853.
                                  __________________
        {¶ 1} In 1983, appellant, Lewis Williams, Jr., was convicted of aggravated
murder with aggravated robbery and firearm specifications, and aggravated
robbery, and was sentenced to death. The Court of Appeals for Cuyahoga County
affirmed the convictions and sentence. State v. Williams (Oct. 25, 1984), Cuyahoga
App. No. 47853, unreported. We affirmed the convictions. State v. Williams
(1986), 

, 23 OBR 13, 

.
        {¶ 2} On June 30, 1993, one day before App.R. 26(B) became effective,
appellant filed a motion for delayed reconsideration in the court of appeals.
However, he filed the motion in the appellate case that appealed from the denial of
postconviction relief under R.C. 2953.21, not from the direct appeal of his criminal
convictions. On August 1, 1994, the court of appeals dismissed the motion because
it had been filed in the wrong case. On October 27, 1994, appellant filed an
application to reopen his appeal under App.R. 26(B), presenting nine assignments
of error allegedly constituting ineffective assistance of appellate counsel, and
arguing as good cause for not filing within ninety days of journalization of the
judgment sought to be reopened, as required by App.R. 26(B)(2)(b), the delay
occasioned by filing the motion for delayed reconsideration in the wrong case.
                             SUPREME COURT OF OHIO




       {¶ 3} The court of appeals rejected the good-cause argument, stating that
counsel’s negligence in filing in the wrong case could not constitute good cause.
Moreover, the court of appeals noted that appellant had waited nearly three months
after his motion for delayed reconsideration had been dismissed to file his
application for reopening. The court of appeals also held that the issues raised were
res judicata, as appellant had changed counsel on appeal to this court from the
judgment of the court of appeals affirming the convictions and could have raised
claims of ineffective assistance of appellate counsel in this court.
       {¶ 4} Appellant appeals from this judgment.
                               __________________
       Stephanie Tubbs Jones, Cuyahoga County Prosecuting Attorney, and Karen
L. Johnson, Assistant Prosecuting Attorney, for appellee.
       David H. Bodiker, Ohio Public Defender, Stephen A. Ferrell and Richard
J. Vickers, Assistant Public Defenders, for appellant.
                               __________________
       Per Curiam.
       {¶ 5} In his first proposition of law, appellant argues that good cause was
shown for the nearly three-month delay between dismissal of the motion for
delayed reconsideration and the filing of the motion for reopening because the
public defender’s office was extremely busy and the second motion had to be newly
researched. We reject this argument. Ten years elapsed since journalization of the
appellate judgment sought to be reopened and the filing of the motion for
reopening. But relief had been available during that time under former App.R.
14(B) and 26, see State v. Reddick (1995), 

, 

,
at 786, and had been expressly available under State v. Murnahan (1992), 

, 

, since February 1992, over one year prior to the
application for delayed reconsideration. There is no good cause for delay here.




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                                 January Term, 1996




        {¶ 6} Moreover, we affirm the judgment of the court of appeals and hold
that issues of ineffective assistance of appellate counsel must be raised at the first
opportunity to do so. Thus, in capital cases in which the death penalty has been
imposed for offenses committed before January 1, 1995, such issues must be raised
in the first appeal as of right in this court, unless, because of unusual circumstances,
applying the doctrine of res judicata would be unjust. See State v. Murnahan,
supra, 

, 

.
        {¶ 7} Accordingly, 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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