[This decision has been published in Ohio Official Reports at
97 Ohio St.3d 87.]
THE STATE OF OHIO, APPELLEE, v. BRYANT-BEY, A.K.A. BEY, APPELLANT.
[Cite as State v. Bryant-Bey, 2002-Ohio-5450.]
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 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. 2001-2214—Submitted July 24, 2002—Decided October 23, 2002.)
APPEAL from the Court of Appeals for Lucas County, No. L-94-003.
__________________
Per Curiam.
{¶1} Appellant, Gregory Bryant-Bey, also known as Gregory Bey, was
convicted of the aggravated murder and the aggravated robbery of Dale Pinkelman
and was sentenced to death. The court of appeals affirmed the conviction and death
sentence. State v. Bey (Sept. 19, 1997), Lucas App. No. L-94-003, 1997 WL
586693. We also affirmed his conviction and death sentence. State v. Bey (1999),
85 Ohio St.3d 487,
709 N.E.2d 484, certiorari denied (1999),
528 U.S. 1049,
120
S.Ct. 587,
145 L.Ed.2d 488.
{¶2} Subsequently, the court of appeals affirmed the trial court’s decision
to deny Bryant-Bey’s petition for postconviction relief. State v. Bryant-Bey (June
16, 2000), Lucas App. No. L-97-1425, 2000 WL 770131. We refused to accept
Bryant-Bey’s appeal of that decision. State v. Bryant-Bey (2000),
90 Ohio St.3d
1440,
736 N.E.2d 902.
{¶3} On October 17, 2001, Bryant-Bey filed an application with the court
of appeals to reopen his direct appeal 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 his appellate counsel in the appeal of his murder and robbery
convictions.
{¶4} Under App.R. 26(B)(5), “[a]n 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.” The court of appeals denied Bryant-Bey’s application to reopen his appeal because Bryant-Bey had not shown good
cause for filing the application more than 90 days after journalization of the
appellate judgment, as is required by App.R. 26(B)(1). The cause is now before
this court upon an appeal as of right.
{¶5} The two-pronged analysis found in Strickland v. Washington (1984),
466 U.S. 668, 687,
104 S.Ct. 2052,
80 L.Ed.2d 674, is the appropriate standard by
which to assess whether Bryant-Bey 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. Sheppard (2001),
91 Ohio St.3d 329, 330,
744 N.E.2d 770; State v. Spivey
(1998),
84 Ohio St.3d 24, 25,
701 N.E.2d 696; State v. Reed (1996),
74 Ohio St.3d
534, 534-535,
660 N.E.2d 456.
{¶6} “To show ineffective assistance, [defendant] 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.”
Sheppard, 91 Ohio St.3d at 330,
744 N.E.2d 770, citing 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, Bryant-Bey “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.” Spivey,
84 Ohio St.3d at 25,
701 N.E.2d 696.
{¶7} We have reviewed Bryant-Bey’s assertions of deficient performance
by appellate counsel and find that Bryant-Bey has failed to raise “a genuine issue
2
January Term, 2002
as to whether [he] was deprived of the effective assistance of counsel on appeal” as
required by App.R. 26(B)(5).
{¶8} In discussing his second proposition of law, Bryant-Bey argues that he
had good cause for the late filing of his application for reconsideration under
App.R. 26(B). Our disposition of Bryant-Bey’s appeal on the merits negates any
need to decide that issue. Accordingly, 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.
__________________
Julia R. Bates, Lucas County Prosecuting Attorney, and Craig T. Pearson,
Assistant Prosecuting Attorney, for appellee.
Kerger & Kerger and Richard M. Kerger; and Ann M. Baronas, for
appellant.
__________________
3
