[This decision has been published in Ohio Official Reports at
95 Ohio St.3d 127.]
THE STATE OF OHIO, APPELLEE, v. SMITH, APPELLANT.
[Cite as State v. Smith, 2002-Ohio-1753.]
Appellate procedure—Application to reopen appeal from judgment of conviction
based on claim of ineffective assistance of appellate counsel—Application
denied when applicant fails to raise a genuine issue as to whether he was
deprived of the effective assistance of counsel on appeal as required by
App.R. 26(B)(5).
(No. 2001-1540—Submitted January 8, 2002—Decided May 1, 2002.)
APPEAL from the Court of Appeals for Lorain County, No. 96CA006331.
__________________
Per Curiam.
{¶1} Appellant, Raymond A. Smith, challenges the denial of his application
to reopen his direct appeal under App.R. 26(B).
{¶2} Smith was convicted of the aggravated murder of Ronald Lally and
sentenced to death. Upon appeal, the court of appeals affirmed the conviction and
death sentence. State v. Smith (Mar. 25, 1998), Lorain App. No. 96CA006331,
1998 WL 158966. We also affirmed his conviction and sentence on January 5,
2000. State v. Smith (2000),
87 Ohio St.3d 424,
721 N.E.2d 93.
{¶3} Soon afterwards, the court of appeals affirmed the trial court’s decision
to deny Smith’s petition for postconviction relief. State v. Smith (Mar. 15, 2000),
Lorain App. No. 98CA007169, 2000 WL 277912. We refused to accept Smith’s
appeal of that decision. State v. Smith (2000),
89 Ohio St.3d 1453,
731 N.E.2d
1140.
{¶4} On July 17, 2001, appellant filed a pro se application for reopening
with the court of appeals pursuant to App.R. 26(B) and State v. Murnahan (1992),
SUPREME COURT OF OHIO
63 Ohio St.3d 60,
584 N.E.2d 1204, alleging ineffective assistance of appellate
counsel in his direct appeal.
{¶5} In denying appellant’s application for reopening, the court of appeals
essentially found that Smith 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. Smith (Aug. 2, 2001), Lorain App. No. 96CA006331.
We then denied Smith’s motion for appointment of counsel to represent him in his
application for reopening pursuant to App.R. 26(B) on September 26, 2001. State
v. Smith (2001), 93 Ohio St.3d 1432,
755 N.E.2d 355. The cause is now before this
court upon an appeal as of right.
{¶6} 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 Smith has raised a “genuine issue” as to the ineffectiveness of appellate
counsel in his request to reopen under App.R. 26(B)(5). See State v. Spivey (1998),
84 Ohio St.3d 24, 25,
701 N.E.2d 696. To show ineffective assistance, Smith 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 they presented those
claims on appeal. State v. Bradley (1989),
42 Ohio St.3d 136,
538 N.E.2d 373,
paragraph three of the syllabus.
{¶7} Moreover, to justify reopening his appeal, Smith “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 696.
{¶8} Strickland charges us to “appl[y] a heavy measure of deference to
counsel’s judgments,” 466 U.S. at 691,
104 S.Ct. 2052,
80 L.Ed.2d 674; and to
“indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance,”
id. at 689,
104 S.Ct. 2052,
80 L.Ed.2d 674.
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January Term, 2002
Moreover, we must bear in mind that appellate counsel need not raise every
possible issue in order to render constitutionally effective assistance. See Jones v.
Barnes (1983), 463 U.S. 745,
103 S.Ct. 3308,
77 L.Ed.2d 987; State v. Sanders
(2002),
94 Ohio St.3d 150,
761 N.E.2d 18.
{¶9} We have reviewed appellant’s four propositions of law alleging, inter
alia, deficient performance by appellate counsel. We rejected several of these same
arguments on Smith’s appeal before this court. See State v. Smith, 87 Ohio St.3d
424,
721 N.E.2d 93. In any case, however, in none of the four propositions of law
has Smith raised “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). (Emphasis added.)
{¶10} Accordingly, 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.
__________________
Gregory A. White, Lorain County Prosecuting Attorney, and Jonathan E.
Rosenbaum, Assistant Prosecuting Attorney, for appellee.
Raymond A. Smith, pro se.
__________________
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