1996 OHIO 34 - State v. Benner

[This opinion has been published in Ohio Official Reports at

76 Ohio St.3d 105

.]




             THE STATE OF OHIO, APPELLEE, v. BENNER, APPELLANT.
                       [Cite as State v. Benner,

1996-Ohio-34

.]
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 failing
        to file his application within ninety days after journalization of the court
        of appeals’ decision affirming the conviction.
        (No. 95-2552—Submitted May 21, 1996—Decided July 24, 1996.)
        APPEAL from the Court of Appeals for Summit County, No. 12664.
                                  __________________
        {¶ 1} Appellant, Glenn L. Benner II, was convicted of the aggravated
murders of two persons with death-penalty specifications, the attempted aggravated
murders of two others, as well as six counts of rape, three counts of kidnapping,
aggravated burglary, gross sexual imposition, and attempted rape. The trial court
sentenced Benner to death for the aggravated murders, and the court of appeals
affirmed the convictions and sentence. State v. Benner (July 29, 1987; July 22,
1987), Summit App. No. 12664, unreported,

1987 WL 15103

, 15078. On direct
appeal as of right, we also affirmed. State v. Benner (1988),

40 Ohio St.3d 301

533 N.E.2d 701

, certiorari denied sub nom. Benner v. Ohio (1990),

494 U.S. 1090

110 S.Ct. 1834

108 L.Ed.2d 962

.
        {¶ 2} On June 30, 1993, Benner filed an application for delayed
reconsideration with the court of appeals pursuant to State v. Murnahan (1992),

63 Ohio St.3d 60

584 N.E.2d 1204

, alleging ineffective assistance of appellate
counsel. The court of appeals noted that Benner’s “application was not filed until
approximately six years after this court affirmed his conviction and sentence.”
Further, the court of appeals found that Benner “has failed to demonstrate good
                            SUPREME COURT OF OHIO




cause why his application was not timely filed. Inasmuch as appellant failed to
articulate ‘particular circumstances’ establishing good cause for the delay …, his
application is denied.” Benner now appeals that denial to this court.
                              __________________
        Maureen O’Connor, Summit County Prosecuting Attorney, and William D.
Wellemeyer, Assistant Prosecuting Attorney, for appellee.
        David H. Bodiker, Ohio Public Defender, Randall L. Porter and Stephen
Hardwick, Assistant Public Defenders, for appellant.
                              __________________
        Per Curiam.
        {¶ 3} We affirm the judgment of the court of appeals for the reasons stated
in its journal entry.
                                                                Judgment affirmed.
        MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
STRATTON, JJ., concur.
                              __________________




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