State v. Wogenstahl

[This opinion has been published in Ohio Official Reports at 

.]




         THE STATE OF OHIO, APPELLEE, v. WOGENSTAHL, APPELLANT.
                    [Cite as State v. Wogenstahl, 

.]
Appellate procedure—Application for reopening appeal from judgment and
        conviction based on claim of ineffective assistance of appellate counsel—
        Applicant’s notice of appeal to Supreme Court divests court of appeals of
        jurisdiction to rule upon application to reopen—S.Ct.Prac.R. II(2)(D)(1),
        applied—Claims asserting ineffective assistance of appellate counsel in
        capital cases must be raised on direct appeal to Supreme Court, unless
        capital defendant “shows good cause for filing at a later time.”
    (No. 95-1165—Submitted September 12, 1995—Decided March 6, 1996.)
     APPEAL from the Court of Appeals for Hamilton County, No. C-930222.
                                  __________________
        {¶ 1} Appellant, Jeffrey A. Wogenstahl, was convicted of aggravated
murder, kidnapping and aggravated burglary, and sentenced to death. The Court of
Appeals for Hamilton County affirmed the judgment of the trial court. State v.
Wogenstahl (Nov. 30, 1994), Hamilton App. No. C-930222, unreported, 

. On January 9, 1995, appellant filed an appeal as of right before this court
on the merits (case No. 95-42). This appeal, pending subsequent to oral argument
on November 15, 1995, is announced today.
        {¶ 2} According to the parties, on February 24, 1995, appellant filed, pro
se, an application before the court of appeals to reopen his appeal pursuant to
App.R. 26(B), arguing ineffective assistance of appellate counsel. On May 23,
1995, the court of appeals denied appellant’s application to reopen for lack of
jurisdiction pursuant to S.Ct.Prac.R. II(2)(D)(1). The court of appeals noted that
under State v. Murnahan (1992), 

, 

, paragraph
                              SUPREME COURT OF OHIO




two of the syllabus, appellant’s claims of ineffective assistance of appellate counsel
may be raised on his direct appeal to this court.
        {¶ 3} Appellant now appeals the denial to this court.
                                __________________
        Joseph T. Deters, Hamilton County Prosecuting Attorney, and William E.
Breyer, Assistant Prosecuting Attorney, for appellee.
        Jeffrey A. Wogenstahl, pro se.
                                __________________
        Per Curiam.
        {¶ 4} The determinative question before this court is whether the court of
appeals erred in dismissing appellant’s application to reopen for lack of jurisdiction.
S.Ct.Prac.R. II(2)(D)(1) states: “After an appeal is perfected from a court of
appeals to the Supreme Court, the court of appeals is divested of jurisdiction, except
to take action in aid of the appeal, to rule on an application for reconsideration filed
with the court of appeals pursuant to Rule 26 of the Rules of Appellate Procedure,
or to rule on a motion to certify a conflict under Article IV, Section 3(B)(4) of the
Ohio Constitution.”
        {¶ 5} Under the clear language of the foregoing rule, appellant’s notice of
appeal to this court divested the court of appeals of jurisdiction to rule upon his
application to reopen.     Accordingly, the court of appeals properly dismissed
appellant’s application.
        {¶ 6} We also note that in response to our decision in 

 the
July 1, 1993 amendment to App.R. 26(B) has created an “Application for
Reopening” to raise ineffective assistance of appellate counsel claims in the court
of appeals.    Accordingly, claims asserting ineffective assistance of appellate
counsel in capital cases must be raised on direct appeal to this court, unless the
capital defendant “shows good cause for filing at a later time.” App.R. 26(B)(1).
        {¶ 7} The judgment of the court of appeals is therefore affirmed.




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                                January Term, 1996




                                                          Judgment affirmed.
          MOYER, C.J., WRIGHT, RESNICK, F.E. SWEENEY, PFEIFER and COOK, JJ.,
concur.
          DOUGLAS, J., concurs in judgment only.
                               __________________




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