State v. Penix - 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. Penix, Appellant.
[Cite as State v. Penix (1995), Ohio St. 3d .]
Appellate procedure -- Application for reopening appeal from
judgment and conviction based on clair of ineffective
assistance of appellate counsel -- Application denied when
issue is res judicata by virtue of appellate court's
opinion in direct appeal.
(No. 94-2477 -- Submitted February 7, 1995 -- Decided May
24, 1995.)
Appeal from the Court of Appeals for Jackson County, No.
461.
According to the court of appeals' opinion, appellant,
Jesse Penix, was indicted on two counts of kidnapping and one
count of rape, felonious assault, and auto theft. The trial
court dismissed one kidnapping count and the auto theft count,
and a jury convicted appellant on the remaining counts.
On appeal, appellant's counsel made forty-one assignments
of error, but failed to argue them individually, and the court
of appeals did not consider them. Appellant filed a belated
brief, pro se, in which he argued ineffective assistance of
trial and appellate counsel. The court of appeals found no
evidence of ineffectiveness of trial counsel and no prejudice
resulting from counsel's actions, and affirmed the
convictions. State v. Penix (Dec. 23, 1983), Jackson App. No.
461, unreported.
Subsequently, it appears, in 1994, appellant sought to
reopen the appellate case, claiming ineffective assistance of
appellate counsel under State v. Murnahan (1992), 63 Ohio St.
3d 60, 584 N.E. 2d 1204. The court of appeals held that the
issue was res judicata by virtue of its opinion in the direct
appeal. Appellant appealed to this court.

Mark A. Ochsenbein, Jackson County Prosecuting Attorney,
and Timothy E. Forshey, Assistant Prosecuting Attorney, for
appellee.
Jesse Penix, pro se.

Per Curiam. The decision of the court of appeals is

affirmed for the reasons stated in its opinion.
Judgment affirmed.
Moyer, C.J., Douglas, Wright, Resnick, F.E. Sweeney,
Pfeifer and Cook, JJ., concur.