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

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The State of Ohio, Appellee, v. Higgins, Appellant.
[Cite as State v. Higgins (1996), _____ Ohio St.3d _____.]
Appellate procedure -- Application for reopening appeal from
judgment and conviction based on claim of ineffective
assistance of appellate counsel -- Application denied when no
genuine issue indicating ineffective assistance of appellate
counsel exists.

(No. 95-1892--Submitted November 14, 1995--Decided January 31,
1996.)
Appeal from the Court of Appeals for Montgomery Count, No.
14335.

Appellant, Valerie Higgins, pled no contest to aggravated trafficking
in cocaine over one hundred times the bulk amount and was found guilty
and sentenced to fifteen years to life imprisonment, as required by R.C.
2925.03(C)(9). Upon appeal, appellant's counsel filed an Anders [Anders v.
California (1967), 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493] brief
"asserting an inability to find any possibly meritorious issues for appellate
review." The court of appeals gave appellant the opportunity to file a pro se
brief, but she did not do so. The court of appeals then affirmed the

conviction, agreeing with counsel that there were no meritorious issues.
State v. Higgins (Dec. 14, 1994), Montgomery App. No. 14335, unreported.
Subsequently,
appellant filed an application to reopen her appeal
under App.R. 26(B). She claimed ineffective assistance of appellate
counsel for failing "to argue that her plea of no contest was defective for the
reason that the trial court failed to advise her that the minimum period of
incarceration of fifteen years was required to be served as actual
incarceration." The court then examined the transcript; found that the trial
court had informed appellant of the maximum period of incarceration, as
required by Crim.R. 11(C)(2), and that appellant and her counsel had
executed an entry of waiver and plea that stated that the minimum term of
incarceration was fifteen years of actual incarceration; and denied the
application to reopen. Appellant appeals to this court.

Mathias H. Heck, Jr., Montgomery County Prosecuting Attorney, and
Carley J. Ingram, Assistant Prosecuting Attorney, for appellee.

Valerie Higgins, pro se.

Per Curiam. Having examined the same portions of the record as the
court of appeals, we come to the same conclusion. The trial court advised

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appellant of the maximum term of incarceration, as required by Crim.R.
11(C)(2), and appellant and her counsel executed the entry of waiver and
plea, which stated the period of actual incarceration. Accordingly, there is
no genuine issue indicating ineffective assistance of appellate counsel, and
the judgment of the court of appeals is affirmed.
Judgment affirmed.

MOYER, C.J., DOUGLAS, WRIGHT, RESNICK, F.E. SWEENEY, PFEIFER
and COOK, JJ., concur.

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