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—S.Ct.Prac.R.          II(2)(D)(1)—Delayed        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 in filing an untimely delayed
        application.
   (No. 98-1146—Submitted August 19, 1998—Decided November 10, 1998.)
     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. This court affirmed
the convictions and death sentence. State v. Wogenstahl (1996), 

,

.
        {¶ 2} During the pendency of the appeal of his convictions and death
sentence, appellant filed an application before the court of appeals to reopen his
appeal pursuant to App.R. 26(B), arguing ineffective assistance of appellate
counsel. 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
two of the syllabus, appellant’s claims of ineffective assistance of appellate counsel
could be raised on his direct appeal to this court.
        {¶ 3} Upon appeal, this court affirmed. State v. Wogenstahl (1996), 

, 

. Shortly after that decision was rendered, this court
                             SUPREME COURT OF OHIO




amended S.Ct.Prac.R. II(2)(D)(1) to permit the court of appeals to retain
jurisdiction to rule on an application for reopening while the case is pending before
the Ohio Supreme Court.
        {¶ 4} On or about March 4, 1998, appellant filed a “Delayed Application
for Reopening” before the court of appeals, alleging ineffective assistance of
appellate counsel. In an entry filed May 21, 1998, the court of appeals denied the
application because appellant had failed to demonstrate good cause for filing the
application more than two years after the amendment to the Supreme Court Rules
of Practice. In addition, the court of appeals held that appellant’s application was
barred by the doctrine of res judicata, since appellant had already raised, and this
court determined, the issue of appellate counsel’s effectiveness in his direct appeal
to this court.
        {¶ 5} 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.
        {¶ 6} The determinative question before this court is whether the court of
appeals erred in dismissing appellant’s delayed application to reopen for lack of
good cause shown and on grounds of res judicata. We find that the court of appeals
was correct in dismissing appellant’s application to reopen, since appellant failed
to demonstrate good cause in filing an untimely delayed application.
        {¶ 7} Moreover, our decision in State v. Wogenstahl, 75 Ohio St.3d at 351,
662 N.E.2d at 318, determined that appellant’s claim of ineffective assistance of
appellate counsel lacked merit. In his instant appeal before this court, appellant
simply argues the same errors that we rejected in his original death penalty appeal.




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                                January Term, 1998




Therefore, that decision is res judicata. Application of the res judicata doctrine in
this case is not unjust. See State v. Murnahan, 

, 

.
        {¶ 8} Appellant’s argument that this court failed to separately consider and
decide each and every instance of claimed ineffective assistance in that appeal is
plainly wrong. As we noted in appellant’s capital appeal, “this court is not required
to address and discuss, in opinion form, each and every proposition of law raised
by the parties in a death penalty appeal. See, e.g., State v. Scudder (1994), 

, 

.” State v. Wogenstahl, 75 Ohio St.3d at 351,
662 N.E.2d at 318. Moreover, we stated that “[w]e have carefully considered each
of appellant’s propositions of law ….       … [A]ppellant received …
competent representation both at trial and on appeal. We address, in opinion form,
only those matters that merit some discussion.” (Emphasis added.) Id.
        {¶ 9} The judgment of the court of appeals is therefore affirmed.
                                                                Judgment affirmed.
        MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
LUNDBERG STRATTON, JJ., concur.
                              __________________




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