State v. Howe

[This opinion has been published in Ohio Official Reports at 

.]




              THE STATE OF OHIO, APPELLEE, v. HOWE, APPELLANT.
                        [Cite as State v. Howe, 

.]
Appellate procedure—Application for reopening appeal from judgment and
        conviction based on claim of ineffective assistance of appellate counsel—
        Application denied when no genuine issue is raised as to whether
        applicant was denied the effective assistance of appellate counsel—
        Petition for postconviction relief—Allegation that co-defendants were
        coerced into falsely implicating petitioner in crimes for which he was
        convicted—Petition denied when allegations of coerced testimony were
        satisfactorily rebutted by trial record.
(Nos. 96-468 and 96-676—Submitted May 21, 1996—Decided August 21, 1996.)
  APPEALS from the Court of Appeals for Montgomery County, Nos. 13969 and
                                           15139.
                                  __________________
        {¶ 1} In March 1993, appellant Weston Howe, Jr., was convicted of
aggravated murder, aggravated robbery, aggravated burglary and having a weapon
under disability, and was sentenced to prison. Upon appeal, the convictions were
affirmed.     State v. Howe (Sept. 30, 1994), Montgomery App. No. 13969,
unreported.
        {¶ 2} In case No. 96-468, on December 21, 1994, appellant filed an
application to reopen his appeal pursuant to App.R. 26(B), alleging ineffective
assistance of appellate counsel. However, the court of appeals was unable to rule
on the application because pending appeals before this court divested it of its
jurisdiction under S.Ct.Prac.R. II (2)(D)(1). See State v. Howe (1995), 

, 

. Eventually, the court of appeals obtained jurisdiction to
rule on appellant’s App.R. 26(B) application. On January 24, 1996, the court of



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appeals denied the application, finding no genuine issue as to whether appellant
was denied the effective assistance of appellate counsel. Appellant appeals that
denial to this court.
        {¶ 3} With respect to case No. 96-676, on July 8, 1994, appellant filed a
petition for postconviction relief before the court of common pleas. The petition
was supported by an affidavit from a co-defendant, alleging that appellant’s co-defendants were coerced into falsely implicating appellant in the crimes for which
he was convicted. After reviewing the record of the criminal proceeding involving
appellant and his co-defendants, the trial court dismissed the postconviction relief
petition without a hearing.
        {¶ 4} Upon appeal, the court of appeals affirmed the trial court’s dismissal
of postconviction relief in case No. 96-676 in the same opinion in which it rejected
appellant’s application to reopen in case No. 96-468. The court of appeals found
the co-defendant’s allegations of coerced testimony were satisfactorily rebutted by
the trial record. See State v. Brooks (Mar. 10, 1994), Cuyahoga App. No. 65088,
unreported (appeal dismissed [1994], 

, 

). This
appeal followed.
                               __________________
        Mathias H. Heck, Jr., Montgomery County Prosecuting Attorney, and
George A. Katchmer, Assistant Prosecuting Attorney, for appellee.
        Weston L. Howe, Jr., pro se.
                               __________________
        Per Curiam.
        {¶ 5} We affirm the judgments of the court of appeals for the reasons stated
in its opinion.
                                                               Judgments affirmed.
        MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
STRATTON, JJ., concur.



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January Term, 1996




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