[This decision has been published in Ohio Official Reports at
93 Ohio St.3d 250.]
THE STATE OF OHIO, APPELLEE, v. BIROS, APPELLANT.
[Cite as State v. Biros, 2001-Ohio-1339.]
Appellate procedure—Application for reopening appeal from judgment of
conviction based on claim of ineffective assistance of appellate counsel—
Application denied when claimant fails to raise a genuine issue as to
whether he was deprived of the effective assistance of counsel on appeal
as required under App.R. 26(B)(5)—Court of appeals’ denial of
application to reopen appeal affirmed.
(No. 01-317—Submitted July 17, 2001—Decided September 26, 2001.)
APPEAL from the Court of Appeals for Trumbull County, No. 91-T-4632.
__________________
Per Curiam.
{¶ 1} Appellant, Kenneth L. Biros, was convicted of the aggravated murder
of Tami Engstrom and sentenced to death. He was also convicted and sentenced to
prison for felonious sexual penetration, aggravated robbery, and attempted rape.
The court of appeals upheld the death sentence but set aside the findings of guilt of
aggravated robbery as it related to the felony-murder charge and the death
specification charging murder during an aggravated robbery. State v. Biros (Dec.
29, 1995), Trumbull App. No. 91-T-4632, unreported. On direct appeal as of right,
we reinstated the findings of guilt as to aggravated robbery, affirmed the remaining
convictions, and affirmed the death penalty. State v. Biros (1997), 78 Ohio St.3d
426,
678 N.E.2d 891, certiorari denied, Biros v. Ohio (1997),
522 U.S. 1002,
118
S.Ct. 574,
139 L.Ed.2d 413.
{¶ 2} Subsequently, the trial court denied Biros’s petition for
postconviction relief, and the court of appeals affirmed. State v. Biros (May 28,
1999), Trumbull App. No. 98-T-0051, unreported, 1999 WL 391090. We declined
SUPREME COURT OF OHIO
to accept Biros’s appeal. State v. Biros (1999), 87 Ohio St.3d 1406,
716 N.E.2d
1168.
{¶ 3} On September 15, 2000, Biros filed an application with the Trumbull
County Court of Appeals to reopen his appeal from his conviction pursuant to
App.R. 26(B) and State v. Murnahan (1992), 63 Ohio St.3d 60,
584 N.E.2d 1204,
alleging ineffective assistance of appellate counsel before that court. However, the
court of appeals found that Biros had failed to show good cause for filing his
application more than ninety days after that court’s judgment was journalized, as
required by App.R. 26(B)(2)(b). State v. Biros (Dec. 27, 2000), Trumbull App. No.
91-T-4632, unreported. Hence, that court denied Biros’s application to reopen his
appeal. The cause is now before this court upon an appeal as of right.
{¶ 4} In his first proposition of law, Biros argues that he had good cause for
the late filing of his application for reconsideration under App.R. 26(B) and relies,
in part, upon Paris v. Turner (C.A.6, 1999), 187 F.3d 637, decision reported without
opinion; opinion at
1999 WL 357815, to support his claim of good cause. However,
our disposition of Biros’s remaining propositions, on the merits, negates any need
to decide that issue.
{¶ 5} In his second and third propositions of law, Biros asserts that his
counsel have established a genuine issue as to whether he was denied the effective
assistance of counsel in his initial appeal to the court of appeals. The two-pronged
analysis found in Strickland v. Washington (1984), 466 U.S. 668,
104 S.Ct. 2052,
80 L.Ed.2d 674, is the appropriate standard to assess whether Biros has raised a
genuine issue as to the ineffectiveness of appellate counsel in his request to reopen
under App.R. 26(B)(5). State v. Spivey (1998),
84 Ohio St.3d 24, 25,
701 N.E.2d
696, 697; State v. Reed (1996),
74 Ohio St.3d 534, 535,
660 N.E.2d 456, 458. “To
show ineffective assistance, [Biros] must prove that his counsel were deficient for
failing to raise the issues he now presents and that there was a reasonable
probability of success had he presented those claims on appeal.” State v. Sheppard
2
January Term, 2001
(2001), 91 Ohio St.3d 329, 330,
744 N.E.2d 770, 771, citing State v. Bradley
(1989),
42 Ohio St.3d 136,
538 N.E.2d 373, paragraph three of the syllabus.
Moreover, to justify reopening his appeal, Biros “bears the burden of establishing
that there was a ‘genuine issue’ as to whether he has a ‘colorable claim’ of
ineffective assistance of counsel on appeal.” State v. Spivey,
84 Ohio St.3d at 25,
701 N.E.2d at 697.
{¶ 6} We have reviewed Biros’s assertions of deficient performance by
appellate counsel and find that Biros has failed to raise “a genuine issue as to
whether [he] was deprived of the effective assistance of counsel on appeal” before
the court of appeals, as required under App.R. 26(B)(5). Accordingly, the judgment
of the court of appeals is affirmed.
Judgment affirmed.
MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
LUNDBERG STRATTON, JJ., concur.
__________________
Dennis Watkins, Trumbull County Prosecuting Attorney, and LuWayne
Annos, Assistant Prosecuting Attorney, for appellee.
David Bodiker, State Public Defender, and Angie Greene, Assistant Public
Defender, for appellant.
__________________
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