1999 OHIO 274 - State v. Webb

[This opinion has been published in Ohio Official Reports at

85 Ohio St.3d 365

.]




               THE STATE OF OHIO, APPELLEE, v. WEBB, APPELLANT.
                        [Cite as State v. Webb,

1999-Ohio-274

.]
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, as required by App.R. 26(B).
    (No. 98-1682—Submitted December 15, 1998—Decided April 28, 1999.)
   APPEAL from the Court of Appeals for Clermont County, No. CA91-08-053.
                                   __________________
        {¶ 1} Appellant, Michael D. Webb, challenges the denial of his application
to reopen his direct appeal under App.R. 26(B).
        {¶ 2} In 1991, Webb was convicted of aggravated murder and sentenced to
death. The Court of Appeals for Clermont County affirmed his conviction and
sentence. State v. Webb (May 24, 1993), Clermont App. No. CA91-08-053,
unreported,

1993 WL 181988

. We affirmed the court of appeals’ judgment. State
v. Webb (1994),

70 Ohio St.3d 325

638 N.E.2d 1023

. The Supreme Court of the
United States denied certiorari on March 20, 1995. Webb v. Ohio (1995),

514 U.S. 1023

115 S.Ct. 1372

131 L.Ed.2d 227

.
{¶ 3} On August 4, 1995, the Ohio Public Defender contracted with Keith
A. Yeazel, who represents Webb in the instant matter, to “provide post-conviction
legal representation” for Webb. However, it was not until May 1, 1998, that Yeazel
filed Webb’s App.R. 26(B) application in the court of appeals.1 App.R. 26(B)(1)

1. On April 20, 1998, the public defender specifically contracted with Yeazel to “[p]ursue a claim
of ineffective assistance of appellate counsel” on Webb’s behalf.
SUPREME COURT OF OHIO

requires that an application to reopen be filed within ninety days from the
journalization of the judgment, absent good cause for filing later.
{¶ 4} The App.R. 26(B) application alleged that Webb’s appellate counsel
had rendered ineffective assistance by failing to raise nine issues in the court of
appeals. Although Webb acknowledged that his application was untimely, he
claimed that good cause existed for the delay in filing because he had been
represented by his original appellate counsel until March 20, 1995, and from then
until April 20, 1998 “had [no] attorney to prepare an application to reopen his direct
appeal.”
{¶ 5} The court of appeals found that, inasmuch as he had been represented
by Yeazel since August 4, 1995, Webb had failed to show good cause for not filing
his application until 1998. The court further found that Webb’s appellate counsel
were not ineffective for failing to raise, on direct appeal, the issues discussed in the
application. Accordingly, the court of appeals denied the application to reopen
Webb’s direct appeal. From that denial, Webb appeals as of right.
__________________
Donald W. White, Clermont County Prosecuting Attorney, and David Henry
Hoffmann, Assistant Prosecuting Attorney, for appellee.
Keith A. Yeazel, for appellant.
__________________
Per Curiam.
{¶ 6} For the reasons stated in the court of appeals’ Entry Denying
Application for Reopening, we affirm the judgment of the court of appeals.
Judgment affirmed.
MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
LUNDBERG STRATTON, JJ., concur.
__________________