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

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The State of Ohio, Appellee, v. Dever, Appellant.
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[Cite as State v. Dever (1995), Ohio St.3d .]
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Appellate procedure -- Application for reopening appeal from judgment
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and conviction based on claim of ineffective assistance of appellate
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counsel -- Application denied when applicant fails to establish good
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cause for failure to file the motion within ninety days from
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journalization of the appellate judgment, as required by App.R.
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26(B).
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(No. 95-831--Submitted July 26, 1995 -- Decided October 11, 1995.)
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Appeal from the Court of Appeals for Hamilton County, No. C-
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880712.
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Appellant, Frederick M. Dever, Jr., was convicted of rape. The court
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of appeals affirmed the conviction. State v. Dever (Jan. 31, 1990), Hamilton
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App. No. C-880712, unreported 1990 WL 6405. We overruled his motion
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for leave to appeal. State v. Dever (1990), 52 Ohio St.3d 701, 556 N.E.2d
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526. The United States Supreme Court granted certiorari, vacated the
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judgment and remanded the case to the court of appeals. Dever v. Ohio
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(1990), 498 U.S. 1009, 111 S. Ct. 575, 112 L. Ed.2d 581. The court of
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appeals reversed the decision of the trial court. The state appealed to this
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court, and we reversed the judgment of the court of appeals and reinstated
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the conviction and sentence. State v. Dever (1992), 64 Ohio St. 3d 401, 596
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N.E.2d 436.
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It is undisputed that in February 1995, Dever filed with the court of
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appeals an application to reopen his appeal under App.R. 26(B), alleging
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ineffective assistance of his appellate counsel. The court of appeals denied
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the application, finding that appellant had failed to establish good cause for
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not filing the application to reopen within ninety days from the
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journalization of the appellate judgment, as required by App.R. 26(B)(2)(b).
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The court of appeals also held that the judgment Dever was seeking to open
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had been rendered a nullity by the United States Supreme Court and was
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therefore impossible to reopen.
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Appellant appeals the denial to this court.
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____________________
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Joseph T. Deters, Hamilton County Prosecuting Attorney, and
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Christian J. Schaefer, Assistant Prosecuting Attorney, for appellee.
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Frederick M. Dever, Jr., pro se.
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____________________

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Per
Curiam. We affirm the decision of the court of appeals for the
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reasons stated in its opinion.
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Judgment affirmed.
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MOYER, C.J., DOUGLAS, WRIGHT, RESNICK, F.E. SWEENEY, PFEIFER
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and COOK, JJ., concur.
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