[This decision has been published in Ohio Official Reports at
92 Ohio St.3d 83.]
THE STATE OF OHIO, APPELLEE, v. HOOKS, APPELLANT.
[Cite as State v. Hooks, 2001-Ohio-150.]
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 demonstrate that his allegations
of ineffectiveness of appellate counsel have any merit—Court of appeals’
denial of application to reopen appeal affirmed.
(No. 00-1771—Submitted March 27, 2001—Decided June 20, 2001.)
APPEAL from the Court of Appeals for Montgomery County, No. 9275.
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Per Curiam.
{¶ 1} Appellant, Danny E. Hooks, was convicted of the aggravated murders
of Donald Danes, his wife, Karen Danes, and their sixteen-year old son, Rodney
Danes, and sentenced to death. He was also convicted and sentenced to prison for
three counts of aggravated robbery and one count of aggravated burglary. The court
of appeals affirmed his convictions and sentences. State v. Hooks (Oct. 22, 1986),
Montgomery App. No. CA 9275, unreported, 1986 WL 11906. We also affirmed
Hooks convictions and death sentences. State v. Hooks (1988),
39 Ohio St.3d 67,
529 N.E.2d 429, certiorari denied, Hooks v. Ohio (1989),
490 U.S. 1012,
109 S.Ct.
1657,
104 L.Ed.2d 171.
{¶ 2} Subsequently, the court of appeals affirmed the trial court’s decision
to deny Hooks’s petition for postconviction relief. State v. Hooks (Oct. 30, 1998),
Montgomery App. Nos. 16978 and 17007, unreported, 1998 WL 754574. We
refused to accept Hooks’s appeal of that decision. State v. Hooks (1999),
85 Ohio
St.3d 1424,
707 N.E.2d 515.
SUPREME COURT OF OHIO
{¶ 3} On March 17, 2000, Hooks filed an application with the court of
appeals to reopen his initial appeal 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 his
appellate counsel before the court of appeals in his first appeal. However, the court
of appeals found that Hooks had failed to demonstrate that a genuine issue existed
and denied Hooks’s application to reopen his appeal. State v. Hooks (Aug. 23,
2000), Montgomery App. No. 9275, unreported. The cause is now before this court
upon an appeal as of right.
{¶ 4} Hooks raises three issues in this appeal. First, Hooks seeks an
evidentiary hearing to perfect his claim of appellate counsel’s ineffectiveness.
However, a reviewing court cannot add matter to the record before it that was not
a part of the trial court’s proceedings, and then decide the appeal on the basis of the
new matter. See State v. Ishmail (1978), 54 Ohio St.2d 402,
8 O.O.3d 405,
377
N.E.2d 500. Nor can the effectiveness of appellate counsel be judged by adding
new matter to the record and then arguing that counsel should have raised these
new issues revealed by this newly added material. Thus, Hooks’s request for an
evidentiary hearing lacks merit.
{¶ 5} In his second issue, Hooks argues that his appellate counsel suffered
from a conflict of interest because his trial attorneys also represented Hooks on
appeal. Hooks argues that a conflict exists, since such counsel were precluded from
raising their own ineffectiveness at trial. Admittedly, appellate counsel cannot
realistically be expected to argue their own ineffectiveness. State v. Lentz (1994),
70 Ohio St.3d 527,
639 N.E.2d 784; see, also, State v. Cole (1982),
2 Ohio St.3d
112, 2 OBR 661,
443 N.E.2d 169.
{¶ 6} However, “ ‘[i]n order to establish a violation of the Sixth
Amendment, a defendant … must demonstrate that an actual conflict of interest
adversely affected his lawyer’s performance.’ A possible conflict is insufficient.”
(Citations omitted and emphasis deleted.) State v. Getsy (1998), 84 Ohio St.3d 180,
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January Term, 2001
187, 702 N.E.2d 866, 877. The same rationale applies to Murnahan claims. As we
shall discuss, Hooks has failed to demonstrate that his allegations of ineffectiveness
of appellate counsel have any merit. See State v. Dillon (1995),
74 Ohio St.3d 166,
657 N.E.2d 273. New counsel on this appeal represent Hooks, and no possible
conflict of interest exists now.
{¶ 7} Hooks’s third issue reaches the merits of issues that he claims his
former appellate lawyers should have raised. Hooks claims that his appellate
counsel were constitutionally ineffective because they failed to raise eleven specific
assignments of error on his direct appeal before the court of appeals.
{¶ 8} The two-pronged analysis found in Strickland v. Washington (1984),
466 U.S. 668, 687,
104 S.Ct. 2052, 2064,
80 L.Ed.2d 674, 693, is the appropriate
standard to assess whether Hooks has raised a “genuine issue” as to the
ineffectiveness of appellate counsel, in his request 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.
{¶ 9} To show ineffectiveness of counsel, Hooks 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 those claims been presented on appeal.
State v. Bradley (1989), 42 Ohio St.3d 136,
538 N.E.2d 373. Moreover, to justify
reopening his appeal, Hooks “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 696-697.
{¶ 10} Our review of Hooks’s eleven assignments of error demonstrates
that they had no reasonable probability of success, even if they had been raised on
appeal. Hooks’s alleged errors are precluded by settled law, involve decisions
within the discretion of the trial judge, or otherwise lack merit. Additionally, the
court of appeals noted that Hooks failed to raise many of these issues at trial and
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SUPREME COURT OF OHIO
thereby waived them on appeal. Nor has Hooks demonstrated that the trial court
abused its discretion in areas within that discretion.
{¶ 11} Hooks, for example, first claims that Ohio’s death penalty violates
three international agreements, but that claim lacks merit. See State v. Bey (1999),
85 Ohio St.3d 487,
709 N.E.2d 484; State v. Phillips (1995),
74 Ohio St.3d 72, 103-
104,
656 N.E.2d 643, 670-671. Second, Hooks asserts that he was denied a fair
proportionality review, but that issue was resolved by State v. Steffen (1987),
31
Ohio St.3d 111, 31 OBR 273,
509 N.E.2d 383.
{¶ 12} Hooks’s remaining assertions raise issues not previously raised at
trial. Waiver therefore precludes those issues absent plain error, and Hooks has
failed to demonstrate outcome-determinative plain error. State v. Wade (1978), 53
Ohio St.2d 182,
7 O.O.3d 362,
373 N.E.2d 1244.
{¶ 13} Finally, Hooks’s contention that cumulative errors committed in his
case resulted in substantial prejudice is without merit, since “[s]uch errors cannot
become prejudicial by sheer weight of numbers.” State v. Hill (1996), 75 Ohio
St.3d 195, 212,
661 N.E.2d 1068, 1084.
{¶ 14} Consequently, after reviewing Hooks’s assertions of deficient
performance by appellate counsel, we find that Hooks 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).
{¶ 15} Accordingly, the judgment of the court of appeals is affirmed.
Judgment affirmed.
MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER and COOK, JJ.,
concur.
LUNDBERG STRATTON, J., dissents.
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January Term, 2001
LUNDBERG STRATTON, J., dissenting.
{¶ 16} I respectfully dissent from the majority’s decision to affirm the
judgment of the court of appeals by denying defendant’s appeal to reopen his
appellate proceedings.
{¶ 17} Hooks was represented at trial and on direct appeal by the same two
counsel. Although this is a capital case, the brief filed by defense counsel in the
court of appeals was only twenty-five pages long. Counsel filed three assignments
of error, one of which was a general challenge to the constitutionality of the death
penalty. Moreover, there were very few citations of authority within the
assignments of error.
{¶ 18} Pursuant to App.R. 26(B)(5), “An application for reopening shall be
granted if there is a genuine issue as to whether the applicant was deprived of the
effective assistance of counsel on appeal.” Further, “[i]f the court finds that the
performance of appellate counsel was deficient and the applicant was prejudiced
by that deficiency, the court shall vacate its prior judgment and enter the appropriate
judgment. If the court does not so find, the court shall issue an order confirming
its prior judgment.” App.R. 26(B)(9).
{¶ 19} Clearly, in a capital case, where a defendant’s very life is at stake, a
twenty-five-page brief is, on its face, deficient, particularly when it raises only three
issues, only one or possibly two of which are meritorious, and none of which is
supported by adequate authority. Every criminal defendant is entitled to a thorough
review of his or her case on direct appeal. Many briefs in capital cases average
from 150 to 300 pages and raise 15 to 25 assignments of error. In a Murnahan
appeal, we cannot adequately consider the numerous issues that should have been
raised on direct appeal, as the majority has attempted to do here. These issues
should be fully briefed, presented by oral argument, considered in conference, and
decided after a full review of the record in order to be completely and fairly
addressed.
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SUPREME COURT OF OHIO
{¶ 20} I believe that this defendant’s representation was so poor that he was
not fairly represented on direct appeal of his death sentences. If the facts in this
case do not warrant a finding of ineffective assistance of counsel, then I cannot
imagine a set of facts that would meet the threshold. The public confidence in the
integrity of our system depends on our assurance that even those defendants who
are alleged to have committed the most heinous crimes deserve an adequate and
fair defense under our American system.
{¶ 21} Hooks did not receive the effective assistance of counsel guaranteed
to him by the Sixth Amendment. I believe that by denying him the opportunity to
reopen his appeal so that he may ultimately have a thorough review of his case, our
faith in our capital system is undermined. The results may not be different in the
long run, but we would have the confidence that the final decision was reached only
after Hooks received a full and vigorous representation. For these reasons, I
respectfully dissent.
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Charles L. Willie, Clinton County Special Assistant Prosecuting Attorney,
and Deborah Quigley, Clinton County Assistant Prosecuting Atorney, for appellee.
Buell & Sipe Co., L.P.A., and Dennis L. Sipe; and Donald C. Schumacher,
for appellant.
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