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

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The State of Ohio, Appellee, v. Carroll, Appellant.
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[Cite as State v. Carroll (1996), ______ Ohio St. 3d ______.]
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Appellate procedure -- Application for reopening appeal from
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judgment and conviction based on claim of ineffective
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assistance of appellate counsel -- Application denied when no
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colorable issue of ineffective assistance of appellate counsel
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raised.
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(No. 95-1030--Submitted September 12, 1995--Decided January 10,
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1996.)
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Appeal from the Court of Appeals for Lorain County, Nos.
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93CA005775 and 94CA005814.
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Appellant, Jack Lynn Carroll, was convicted of four counts of
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aggravated drug trafficking, and one count each of drug abuse, having
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weapons under disability, unlawful possession of dangerous ordnance,
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possession of drug abuse paraphernalia, and permitting drug abuse. The
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Court of Appeals for Lorain County affirmed appellant's convictions, but
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reversed the trial court's order requiring forfeiture of appellant's residence

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and remanded the case for the trial court to ascertain whether the forfeiture
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constituted an excessive fine under the state and federal Constitutions.
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Appellant filed a timely application to reopen his direct appeal,
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alleging numerous issues of ineffective assistance of appellate counsel. The
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court of appeals thoroughly reviewed the application for reopening pursuant
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to App. R. 26(B), held that appellant had failed to raise a colorable issue of
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ineffective assistance of appellate counsel, and denied appellant's
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application. Appellant now appeals to this court.
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Gregory A. White, Lorain County Prosecuting Attorney, and Lisa A.
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Locke Graves, Assistant Prosecuting Attorney, for appellee.
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Jack Lynn Carroll, pro se.
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Per Curiam. We affirm the decision of the court of appeals.
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Appellant principally argues that his appellate counsel had a conflict of
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interest because she shared office space with his trial counsel. The court of
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appeals found no conflict of interest. We agree. Accordingly, appellant has
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not shown the deficient performance of counsel and resultant prejudice

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required under Strickland v. Washington (1984), 466 U.S. 668, 104 S. Ct.
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2052, 80 L. Ed. 2d 674, nor has he shown the presumption of prejudice
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which arises when a defendant demonstrates that counsel actively
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represented conflicting interests and that the actual conflict of interest
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adversely affected counsel's performance, as required under Cuyler v.
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Sullivan (1980), 446 U.S. 335, 100 S. Ct. 1708, 64 L. Ed. 2d 333. See, also,
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State v. Haberek (1988), 47 Ohio App. 3d 35, 38, 546 N. E. 2d 1361, 1365.
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In his third proposition of law, appellant raises several issues he
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alleges as trial errors, but without relating them to the effective assistance of
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counsel issue. Applications under App. R. 26(B) relate only to the issue of
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the effective assistance of appellate counsel. Therefore, these issues have
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no merit.
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In his fourth proposition of law, appellant argues that App. R. 26(B)
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denies him due process because no appellate counsel was appointed and a
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ten-page limit was imposed on briefs in the application for reopening.
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These issues were apparently not raised in the court of appeals, and we do
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not consider them for the first time on appeal. State v. Williams (1977), 51

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Ohio St. 2d 112, 5 O.O. 3d 98, 364 N. E. 2d 1364, paragraph two of the
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syllabus.
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The judgment of the court of appeals denying the application to
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reopen is affirmed.
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Judgment affirmed.
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MOYER, C.J., DOUGLAS, WRIGHT, RESNICK, F.E. SWEENEY and
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PFEIFER, JJ., concur.
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COOK, J., not participating.

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