[This decision has been published in Ohio Official Reports at
97 Ohio St.3d 55.]
THE STATE OF OHIO, APPELLEE, v. BURKE, APPELLANT.
[Cite as State v. Burke, 2002-Ohio-5310.]
Appellate procedure—Application to reopen appeal from judgment of conviction
based on claim of ineffective assistance of appellate counsel—Court of
appeals’ denial of application affirmed, when—Application denied when
applicant fails to demonstrate the existence of a genuine issue as to
appellate counsel’s effectiveness.
(No. 2001-2185—Submitted July 24, 2002—Decided October 16, 2002.)
APPEAL from the Court of Appeals for Franklin County, No. 90AP-1344,
2001-Ohio-4067.
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Per Curiam.
{¶1} Appellant, Mark Burke, challenges the denial of his application to
reopen his direct appeal under App.R. 26(B).
{¶2} Burke was convicted of aggravated murder and sentenced to death.
The Court of Appeals for Franklin County affirmed his conviction and sentence.
State v. Burke (Dec. 28, 1993), Franklin App. No. 90AP-1344, 1993 WL 541653.
We affirmed the court of appeals’ judgment. State v. Burke (1995),
73 Ohio St.3d
399,
653 N.E.2d 242. The Supreme Court of the United States denied certiorari.
Burke v. Ohio (1996),
517 U.S. 1112,
116 S.Ct. 1336,
134 L.Ed.2d 486.
{¶3} On May 22, 2001, Burke’s counsel filed an App.R. 26(B) application
in the court of appeals. App.R. 26(B)(5) requires that the applicant show “a genuine
issue as to whether the applicant was deprived of the effective assistance of counsel
on appeal.” Burke claimed that he had been denied effective assistance by reason
of his appellate counsel’s failure to raise 20 issues on direct appeal. The court of
appeals examined each of Burke’s contentions and found that they failed to
SUPREME COURT OF OHIO
demonstrate the existence of a genuine issue as to appellate counsel’s effectiveness.
The court therefore denied Burke’s application. State v. Burke (Nov. 15, 2001),
Franklin App. No. 90AP-1344, 2001 WL 1426433.
{¶4} In his first proposition of law, Burke contends that he did raise a
genuine issue and that his application should therefore have been granted.
{¶5} Strickland v. Washington (1984), 466 U.S. 668,
104 S.Ct. 2052,
80
L.Ed.2d 674, establishes the standard for judging ineffective-assistance claims.
The two-part Strickland test, we have held, “is the appropriate standard to assess a
defense request for reopening under App.R. 26(B)(5).” State v. Spivey (1998),
84
Ohio St.3d 24, 25,
701 N.E.2d 696.
{¶6} Under Strickland, a defendant claiming ineffective assistance of
counsel “must show that counsel’s representation fell below an objective standard
of reasonableness.” Id. at 687-688, 104 S.Ct. 2052,
80 L.Ed.2d 674. He must also
show that the ineffective representation prejudiced his case: “The defendant must
show that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the outcome.”
Id.
at 694,
104 S.Ct. 2052,
80 L.Ed.2d 674. See, also, State v. Bradley (1989),
42 Ohio
St.3d 136,
538 N.E.2d 373, paragraphs two and three of the syllabus.
{¶7} Under Strickland, a court must apply “a heavy measure of deference
to counsel’s judgments,” 466 U.S. at 691,
104 S.Ct. 2052,
80 L.Ed.2d 674, and
“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, since the basis of Burke’s claim is counsel’s failure to raise certain issues
on appeal, we note 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.
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January Term, 2002
{¶8} The court of appeals, applying Strickland, concluded that Burke’s
application failed to raise any genuine issue of ineffective assistance of counsel.
We agree. We therefore overrule Burke’s first proposition of law.
{¶9} In his second proposition of law, Burke contends that the court of
appeals erroneously denied his request for an evidentiary hearing on the
application, see App.R. 26(B)(8), and his related requests for discovery, funds to
retain an expert witness regarding ineffective assistance of counsel, and
appointment of counsel. He contends that the court should have held a hearing to
determine whether, under all the circumstances, appellate counsel’s conduct was
sound strategy or deficient performance.
{¶10} This proposition lacks merit. The court of appeals carefully reviewed
each of the 20 issues Burke wishes to raise on a reopened appeal. Four of them
simply lacked support in the trial record. Clearly, declining to raise claims without
record support cannot constitute ineffective assistance of appellate counsel. See
State v. Hill (2001), 90 Ohio St.3d 571, 573,
740 N.E.2d 282. Hence, there was no
need to inquire into the circumstances surrounding counsel’s failure to raise these
claims.
{¶11} Nor was Burke entitled to a hearing to determine the facts underlying
the claims themselves, for “the effectiveness of appellate counsel [cannot] 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.” State v.
Moore (2001), 93 Ohio St.3d 649, 650,
758 N.E.2d 1130.
{¶12} The court of appeals determined that appellate counsel’s failure to
raise ten other claims was not deficient performance because four were barred by
res judicata, while six were not supported by existing law. Finally, the court
determined that counsel’s failure to raise six other claims was not prejudicial under
Strickland. Again, there was no need to inquire into the circumstances surrounding
appellate counsel’s decision not to raise these claims.
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SUPREME COURT OF OHIO
{¶13} Finally, as to the appointment of counsel, Burke was, in fact,
represented by counsel on his App.R. 26(B) application. See Moore, 93 Ohio St.3d
at 650,
758 N.E.2d 1130.
{¶14} 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.
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Law Offices of John S. Marshall and Lori Leon; and Carol A. Wright, for
appellant.
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