[This decision has been published in Ohio Official Reports at
97 Ohio St.3d 332.]
THE STATE OF OHIO, APPELLEE, v. SLAGLE, APPELLANT.
[Cite as State v. Slagle, 2002-Ohio-6612.]
Appellate procedure—Application for reopening appeal from judgment of
conviction based on claim of ineffective assistance of appellate counsel—
Application denied when claim barred by res judicata—Neither App.R.
26(B) nor State v. Murnahan provides for second and subsequent
applications for reopening appeal.
(No. 2002-0996—Submitted October 15, 2002—Decided December 11, 2002.)
APPEAL from the Court of Appeals for Cuyahoga County, No. 55759,
2002-Ohio-2722.
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Per Curiam.
{¶1} Appellant, Billy Slagle, challenges the denial of his second application
to reopen his direct appeal under App.R. 26(B).
{¶2} Slagle was convicted of the aggravated murder of Mari Anne Pope and
sentenced to death. On appeal, the court of appeals affirmed the conviction and
death sentence. State v. Slagle (Sept. 26, 1991), Cuyahoga App. No. 55759, 1991
WL 191836. On December 31, 1992, we also affirmed his conviction and sentence.
State v. Slagle (1992),
65 Ohio St.3d 597,
605 N.E.2d 916, certiorari denied (1993),
510 U.S. 833,
114 S.Ct. 106,
126 L.Ed.2d 72.
{¶3} On August 4, 1994, Slagle filed an application for reopening with the
court of appeals pursuant to App.R. 26(B), alleging ineffective assistance of
appellate counsel. The court of appeals denied the application, finding that
appellant had failed to file a timely application pursuant to App.R. 26(B)(2)(b). In
addition, the court of appeals held that appellant’s seven proposed assignments of
error failed to establish a colorable claim of ineffective assistance of appellate
SUPREME COURT OF OHIO
counsel. State v. Slagle (Sept. 1, 1994), Cuyahoga App. No. 55759. On July 19,
1995, we affirmed the judgment of the court of appeals for the reasons stated in its
opinion. State v. Slagle (1995), 72 Ohio St.3d 509, 510,
651 N.E.2d 937.
{¶4} In addition, the trial court denied Slagle’s amended petition for
postconviction relief, and the court of appeals affirmed. State v. Slagle (Aug. 10,
2000), Cuyahoga App. No. 76834, 2000 WL 1144947. We declined to accept
Slagle’s appeal. State v. Slagle (2000),
90 Ohio St.3d 1490,
739 N.E.2d 815.
{¶5} On November 20, 2001, Slagle filed the instant application for
reopening with the court of appeals 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 in his direct appeal.
{¶6} In denying appellant’s second application for reopening, the court of
appeals held that there is no right to file successive applications for reopening
pursuant to App.R. 26(B). See State v. Richardson (1996), 74 Ohio St.3d 235,
658
N.E.2d 273. The court of appeals further held that the doctrine of res judicata
applied, since his new claims of ineffective assistance of appellate counsel could
have been raised in his initial application to reopen. State v. Slagle (May 29, 2002),
Cuyahoga App. No. 55759,
2002 WL 1335630. The cause is now before this court
upon an appeal as of right.
{¶7} We affirm the judgment of the court of appeals. As we held in State
v. Richardson, 74 Ohio St.3d at 236,
658 N.E.2d 273, neither App.R. 26(B) nor
State v. Murnahan,
63 Ohio St.3d 60,
584 N.E.2d 1204, provides for second and
subsequent applications for reopening. Moreover, we find no injustice in applying
the doctrine of res judicata on these facts.
{¶8} 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.
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January Term, 2002
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William D. Mason, Cuyahoga County Prosecuting Attorney, and Diane
Smilanick, Assistant Prosecuting Attorney, for appellee.
David H. Bodiker, Ohio Public Defender, Joseph E. Wilhelm, Appellate
Supervisor, Kelly L. Culshaw and Robert K. Lowe, Assistant State Public
Defenders, for appellant.
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