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

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The State of Ohio, Appellee, v. Wogenstahl, Appellant.
[Cite as State v. Wogenstahl (1996), _____ Ohio St.3d _____.]
Appellate procedure -- Application for reopening appeal from
judgment and conviction based on claim of ineffective
assistance of appellate counsel -- Applicant's notice of appeal
to Supreme Court divests court of appeals of jurisdiction to
rule upon application to reopen -- S.Ct.Prac.R. II(2)(D)(1),
applied -- Claims asserting ineffective assistance of appellate
counsel in capital cases must be raised on direct appeal to
Supreme Court, unless capital defendant "shows good cause
for filing at a later time."

(No. 95-1165--Submitted September 12, 1995--Decided March 6,
1996.)
Appeal from the Court of Appeals for Hamilton County, No. C-
930222.

Appellant, Jeffrey A. Wogenstahl, was convicted of aggravated
murder, kidnapping and aggravated burglary, and sentenced to death. The
Court of Appeals for Hamilton County affirmed the judgment of the trial
court. State v. Wogenstahl (Nov. 30, 1994), Hamilton App. No. C-930222,
unreported, 1994 WL 686898. On January 9, 1995, appellant filed an
appeal as of right before this court on the merits (case No. 95-42). This
appeal, pending subsequent to oral argument on November 15, 1995, is
announced today.

According to the parties, on February 24, 1995, appellant filed, pro
se, an application before the court of appeals to reopen his appeal pursuant
to App.R. 26(B), arguing ineffective assistance of appellate counsel. On

May 23, 1995, the court of appeals denied appellant's application to reopen
for lack of jurisdiction pursuant to S.Ct.Prac.R. II(2)(D)(1). The court of
appeals noted that under State v. Murnahan (1992), 63 Ohio St.3d 60, 584
N.E.2d 1204, paragraph two of the syllabus, appellant's claims of
ineffective assistance of appellate counsel may be raised on his direct appeal
to this court.

Appellant now appeals the denial to this court.
_____________________________

Joseph T. Deters, Hamilton County Prosecuting Attorney, and
William E. Breyer, Assistant Prosecuting Attorney, for appellee.

Jeffrey A. Wogenstahl, pro se.
______________________________

Per Curiam. The determinative question before this court is whether
the court of appeals erred in dismissing appellant's application to reopen for
lack of jurisdiction. S.Ct.Prac.R. II(2)(D)(1) states: "After an appeal is
perfected from a court of appeals to the Supreme Court, the court of appeals
is divested of jurisdiction, except to take action in aid of the appeal, to rule
on an application for reconsideration filed with the court of appeals
pursuant to Rule 26 of the Rules of Appellate Procedure, or to rule on a
motion to certify a conflict under Article IV, Section 3(B)(4) of the Ohio
Constitution."

Under the clear language of the foregoing rule, appellant's notice of
appeal to this court divested the court of appeals of jurisdiction to rule upon
his application to reopen. Accordingly, the court of appeals properly
dismissed appellant's application.

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We also note that in response to our decision in Murnahan, supra, the
July 1, 1993 amendment to App.R. 26(B) has created an "Application for
Reopening" to raise ineffective assistance of appellate counsel claims in the
court of appeals. Accordingly, claims asserting ineffective assistance of
appellate counsel in capital cases must be raised on direct appeal to this
court, unless the capital defendant "shows good cause for filing at a later
time." App.R. 26(B)(1).

The judgment of the court of appeals is therefore affirmed.
Judgment affirmed.

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

DOUGLAS, J., concurs in judgment only.

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