State v. Smith - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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OPINIONS OF THE SUPREME COURT OF OHIO
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The State of Ohio, Appellee, v. Smith, Appellant.
[Cite as State v. Smith (1994), Ohio St.3d .]
Motion for delayed reconsideration of appeal denied.
(No 90-1433 -- Submitted October 24, 1994-- Decided
December 14, 1994)
On Motion for Delayed Reconsideration.

Joseph T. Deters, Hamilton County Prosecuting Attorney,
and Christian J. Schaefer, Assistant Prosecuting Attorney, for
appellee.
David H. Bodiker, Ohio Public Defender, William S. Lazarow
and Kevin L. Fahey, Assistant Public Defenders, for appellant.

Defendant-appellant, William H. Smith, was convicted of
rape, aggravated robbery and aggravated murder, and sentenced
to death. On direct appeal as of right, the court of appeals
affirmed the conviction and sentence. State v. Smith (June 6,
1990), Hamilton App. No. C-880287, unreported, 1990 WL 73974.
We also affirmed when he appealed to this court. State v.
Smith (1991), 61 Ohio St.3d 284, 574 N.E.2d 510, certiorari
denied (1992), 503 U.S. , 112 S.Ct. 1211, 117 L.Ed.2d 449.
Defendant then petitioned the trial court for postconviction
relief under R.C. 2953.21, and we granted a stay. See State v.
Smith (1992), 65 Ohio St.3d 1452, 602 N.E.2d 249. Next,
defendant filed an application for delayed reconsideration of
his direct appeal in the court of appeals, pursuant to App.R.
26(B), claiming he had been denied effective assistance of
appellate counsel when that court first considered his case in
1990. (See State v. Murnahan [1992], 63 Ohio St.3d 60, 584
N.E.2d 1204.) The court of appeals denied that application for
reconsideration, State v. Smith (June 30, 1993), Hamilton App.
No. C-880287, unreported, WL , and we affirmed that
judgment, (1993), 68 Ohio St.3d 1404, 623 N.E.2d 562,
certiorari denied (1994), 512 U.S. , 114 S.Ct. 2768, 129
L.Ed.2d 882. Defendant now claims that he lacked effective
assistance of appellate counsel in his 1991 direct appeal to
this court, and therefore asks us to reconsider his direct
appeal under S.Ct.Prac.R. XI(1)(B).

We deny the motion. Defendant's 1991 appeal to this court
was not a first appeal as of right on the merits of his
criminal case; therefore, he had no constitutional right to
counsel, and hence no constitutional right to effective
assistance. See State v. Buell (1994), 70 Ohio St.3d 1211, 639
N.E.2d 110.
Motion denied.
Moyer, C.J., A.W. Sweeney, Douglas, Resnick, F.E. Sweeney
and Pfeifer, JJ., concur.
Wright, J., dissents.