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

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The State of Ohio, Appellee, v. Reed, Appellant.
[Cite as State v. Reed (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
exists as to whether applicant was prejudiced by any alleged
deficient performance by his appellate counsel.

(No. 95-1048--Submitted September 15, 1995--Decided February 14,
1996.)

APPEAL from the Court of Appeals for Hamilton County, Nos. C-940315
and C-940322.

Appellant, Darryl Reed, was convicted of drug abuse with a specification
of a prior offense of violence and was sentenced to prison for four to ten years.
The conviction was affirmed on appeal. State v. Reed (Oct. 28, 1994),
Hamilton App. Nos. C-940315 and C-940322, unreported. The only issue
raised on appeal was that the decision was manifestly against the weight of the
evidence. The appellate brief, filed by counsel appointed to handle the
appeal, did not cite any case law to support the lone assignment of error.

Further, the brief made no mention of the defendant-appellant's request, denied
by the trial court, to represent himself at trial.

Subsequently, appellant, represented by new counsel from the Ohio
Public Defender's Office, filed an application to reopen his appeal in the court
of appeals under App.R. 26(B). Appellant alleged that appellate counsel was
ineffective for failing to argue that the trial court erred by denying appellant his
constitutional right to represent himself. The court of appeals denied the
application to reopen, stating:

"Having reviewed appellant's claims and the record, the Court finds no
genuine issue as to whether appellant was prejudiced by any alleged deficient
performance by his appellate counsel. See Strickland v. Washington (1984),
466 U.S. 668, 104 S.Ct. 2052[ 80 L.Ed.2d 674]; State v. Bradley (1989), 42
Ohio St.3d 136, 538 N.E.2d 373; App.R. 26 (B)."

Appellant filed an appeal to this court.

Joseph T. Deters, Hamilton County Prosecuting Attorney, and L. Susan
Laker, Assistant Prosecuting Attorney, for appellee.

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David H. Bodiker, Ohio Public Defender, and Gloria Eyerly, Assistant
State Public Defender, for appellant.

WRIGHT, J. The only issue to be decided at this stage of the case is
whether the appellant has raised a "genuine issue" as to his claim that he was
denied effective assistance of appellate counsel, according to the dictates of
App. R. 26 (B)(5). We express no judgment on appellant's contention that he
was denied his constitutional right to defend himself. Rather, we are concerned
solely with the standard of review to be applied when assessing a defendant's
request for reopening an appeal under App.R. 26(B)(5).

In denying the application for reopening, the court of appeals applied the
Strickland standard for determining whether a defendant is entitled to a new
trial. While this court has not expressed its view on adopting that standard for
reopening appeals, the federal courts have used and now use Strickland to
assess requests in cases alleging ineffective assistance of appellate counsel. See
Duhamel v. Collins (C.A.5, 1992), 955 F.2d 962, 967; Heath v. Jones (C.A.11,
1991), 941 F.2d 1126; Cross v. United States (C.A.11, 1990), 893 F.2d 1287.

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We hold that the two-prong analysis found in Strickland is the appropriate level
of review to determine whether an appellant has raised a "genuine issue" in an
application for reopening an appeal under App.R.26(B)(5).

In the present case, appellant contends that his appellate counsel was
ineffective in failing to raise the trial court's denial of his constitutional right to
represent himself. In Faretta v. California (1975), 422 U.S. 806, 95 S.Ct.
2525, 45 L.Ed.2d 562, the United States Supreme Court held, without
equivocation, that a criminal defendant has a Sixth Amendment right to self-
representation. In McKaskle v. Wiggins (1984), 465 U.S. 168, 177, 104 S.Ct.
944, 950, 79 L.Ed.2d 122, 133, at fn.8, the court further held that the denial of
the right to self-representation is reversible error per se and therefore that it
may not be subjected to the harmless-error analysis.

Upon examining appellant's appellate counsel's performance in its
entirety, we find that appellant has met both prongs of the Strickland standard.
The failure to raise a constitutional issue of such magnitude as self-
representation clearly constitutes deficient performance. It is equally clear that,

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since appellant had a "reasonable probability" of success if this claim had been
asserted, appellate counsel's failure to do so was prejudicial. Accordingly,
appellant's appeal must be reopened so the court of appeals can determine
whether Reed was denied his right to represent himself. We reverse the
judgment of the court of appeals and remand with instructions to grant
appellant's application to reopen his appeal and consider the merits of his
claim.

Judgment reversed and cause remanded.

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

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