State v. Doles

[This opinion has been published in Ohio Official Reports at 

.]




              THE STATE OF OHIO, APPELLEE, v. DOLES, APPELLANT.
                       [Cite as State v. Doles, 

.]
Appellate procedure—Successive applications for reopening appeal from
        judgment and conviction based on claim of ineffective assistance of
        appellate counsel—Application denied when substantive merits of
        applicant’s arguments were addressed in first application.
         (No. 96-134—Submitted April 30, 1996—Decided June 19, 1996)
     APPEAL from the Court of Appeals for Ross County, Nos. 90CA1660 and
                                        92CA1864.
                                  __________________
        {¶ 1} In 1990, appellant, David Doles, was convicted of gross sexual
imposition and two counts of sexual battery, and sentenced to prison. Doles
appealed, and the court of appeals remanded his case to the trial court for a limited
inquiry. State v. Doles (Sept. 16, 1991), Ross App. No. 90CA1660, unreported,

, appeal dismissed (1992), 

, 

.
After the trial court concluded the inquiry, the court of appeals affirmed Doles’s
convictions and sentence.         State v. Doles (Mar. 31, 1993), Ross App. No.
92CA1864, unreported, 

, appeal dismissed (1993), 

, 

.
        {¶ 2} In August 1995, Doles filed with the court of appeals an application
to reopen his appeal under App.R. 26(B), alleging ineffective assistance of his
appellate counsel. The court of appeals denied the request to reopen on two
grounds. First, “appellant’s application does not include a ‘sworn statement’ for
the basis of his claim as is required by App.R. 26(B)(2)(d).” See State v. Lechner
(1995), 

, 

. Second, “appellant fails
                             SUPREME COURT OF OHIO




to demonstrate a genuine issue as to whether he was denied effective assistance of
appellate counsel.”
       {¶ 3} In October 1995, Doles filed another application to reopen his appeal.
       {¶ 4} The court of appeals found that Doles, in his second application,
argued “substantially, the same arguments as he made in his first application.”
Hence, the court of appeals held that it had “already addressed the substantive
merits of appellant’s arguments … and the matter is now res judicata.”
       {¶ 5} The court of appeals then denied Doles’s second application to
reopen. Doles appeals that denial to this court.
                              __________________
       Michael M. Ater, Ross County Assistant Prosecuting Attorney, for appellee.
       Johnston & Gleeson and Lorene G. Johnston, for appellant.
                              __________________
       Per Curiam.
       {¶ 6} We affirm the judgment of the court of appeals for the reasons stated
in its decision. See, also, State v. Peeples (1995), 

, 

; State v. Cheren (1995), 

, 

.
                                                               Judgment affirmed.
       MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
STRATTON, JJ., concur.
                              __________________




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