[This decision has been published in Ohio Official Reports at
96 Ohio St.3d 348.]
THE STATE OF OHIO, APPELLEE, v. SNEED, APPELLANT.
[Cite as State v. Sneed, 2002-Ohio-4768.]
Appellate procedure—Application to reopen appeal from judgment of conviction
based on claim of ineffective appellate counsel—Court of appeals’ denial
of application affirmed, when—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. 2002-0310—Submitted July 24, 2002—Decided September 25, 2002.)
APPEAL from the Court of Appeals for Stark County, No. CA-6976.
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Per Curiam.
{¶1} Appellant, David Allen Sneed, challenges the denial of his application
to reopen his direct appeal under App.R. 26(B).
{¶2} Sneed was convicted of the aggravated murder of Herbert M. Rowan
and sentenced to death. Upon appeal, the court of appeals affirmed the conviction
and death sentence. State v. Sneed (May 22, 1989), Stark App. No. CA-6976, 1989
WL 63272. On February 12, 1992, we also affirmed his conviction and sentence.
State v. Sneed (1992),
63 Ohio St.3d 3,
584 N.E.2d 1160.
{¶3} In addition, the trial court denied Sneed’s amended petition for
postconviction relief, and the court of appeals affirmed that judgment. State v.
Sneed (Sept. 29, 2000), Stark App. No. 1999CA00339, 2000 WL 1476140. We
declined to accept Sneed’s appeal. State v. Sneed (2001),
91 Ohio St.3d 1428,
741
N.E.2d 893.
{¶4} On November 8, 2001, appellant filed the instant application for
reopening with the court of appeals pursuant to App.R. 26(B) and State v.
SUPREME COURT OF OHIO
Murnahan (1992), 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
relied on the reasoning “contained in the State of Ohio’s response in opposition.”
State v. Sneed (Jan. 14, 2002), Stark App. No. CA-6976. The cause is now before
this court upon an appeal as of right.
{¶6} We affirm the judgment of 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 Sneed has raised a
“genuine issue” as to the ineffectiveness of appellate counsel in his request to
reopen his appeal 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, Sneed 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. Moreover, to justify reopening his appeal, Sneed “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.
{¶7} 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.
“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, 151-152,
761 N.E.2d 18.
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January Term, 2002
{¶8} We have reviewed appellant’s three propositions of law alleging, inter
alia, deficient performance by appellate counsel. In none of the three propositions
of law has Sneed 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.) This decision renders moot Sneed’s
other issues.
{¶9} 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.
__________________
Robert D. Horowitz, Stark County Prosecuting Attorney, and Ronald Mark
Caldwell, Assistant Prosecuting Attorney, for appellee.
David H. Bodiker, Ohio Public Defender, and Christa M. Hohmann,
Assistant State Public Defender, for appellant.
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