[This decision has been published in Ohio Official Reports at
91 Ohio St.3d 329.]
THE STATE OF OHIO, APPELLEE, v. SHEPPARD, APPELLANT.
[Cite as State v. Sheppard, 2001-Ohio-52.]
Appellate procedure—Application for reopening appeal from judgment of
conviction based on claim of ineffective assistance of appellate counsel—
Court of appeals’ denial of application affirmed albeit for different
reasons—Application denied when applicant fails 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).
(No. 00-1861—Submitted January 30, 2001—Decided April 11, 2001.)
APPEAL from the Court of Appeals for Hamilton County, Nos. C-950402
and C-950744.
__________________
Per Curiam.
{¶ 1} Appellant, Bobby T. Sheppard, was convicted of the aggravated
murder of Dennis Willhide and sentenced to death. He was also convicted and
sentenced to prison for aggravated robbery. The court of appeals affirmed the
convictions and sentence. State v. Sheppard (June 11, 1997), Hamilton App. Nos.
C-950402 and C-950744, unreported. On direct appeal as of right, we also
affirmed. State v. Sheppard (1998), 84 Ohio St.3d 230,
703 N.E.2d 286, certiorari
denied, Sheppard v. Ohio (1999),
527 U.S. 1026,
119 S.Ct. 2376,
144 L.Ed.2d 779.
{¶ 2} Additionally, the trial court dismissed Sheppard’s third amended
petition for postconviction relief, and the court of appeals affirmed. State v.
Sheppard (Mar. 26, 1999), Hamilton App. No. C-980569, unreported, 1999 WL
162457. We declined to accept Sheppard’s appeal. State v. Sheppard (1999),
86
Ohio St.3d 1437,
713 N.E.2d 1049, certiorari denied, Sheppard v. Ohio (2000),
528
U.S. 1168,
120 S.Ct. 1190,
145 L.Ed.2d 1095.
SUPREME COURT OF OHIO
{¶ 3} On March 9, 2000, Sheppard filed an application with the court of
appeals to reopen his appeal from his convictions 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 Sheppard 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. Sheppard (Oct. 2, 2000), Hamilton App. Nos. C-950402 and
C-950744, unreported. Hence, that court denied Sheppard’s application to reopen
his appeal. The cause is now before this court upon an appeal as of right.
{¶ 4} We affirm the judgment of the court of appeals, albeit for different
reasons. 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 Sheppard 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, Sheppard 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. Bradley (1989),
42 Ohio St.3d 136,
538 N.E.2d 373, paragraph
three of the syllabus.
{¶ 5} Moreover, to justify reopening his appeal, Sheppard “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. We have reviewed Sheppard’s assertions of
deficient performance by appellate counsel and find that Sheppard 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).
{¶ 6} Accordingly, the judgment of the court of appeals is affirmed.
2
January Term, 2001
Judgment affirmed.
MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
LUNDBERG STRATTON, JJ., concur.
__________________
Michael K. Allen, Hamilton County Prosecuting Attorney, and William E.
Breyer, Assistant Prosecuting Attorney, for appellee.
David H. Bodiker, Ohio Public Defender, and Jane Perry, Assistant Public
Defender, for appellant.
__________________
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