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

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The State of Ohio, Appellee, v. Griffie, Appellant.
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[Cite as State v. Griffie (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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genuine issue of whether applicant was deprived of effective
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assistance of counsel on appeal is raised.
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(No. 95-897--Submitted September 12, 1995--Decided January 17,
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1996.)
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Appeal from the Court of Appeals for Montgomery County, No.
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14364.
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Following a jury trial, appellant, James Griffie was convicted of
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felonious assault and sentenced accordingly. The court of appeals affirmed
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the conviction except for a fine. State v. Griffie, Jr. (Dec. 21, 1994),
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Montgomery App. No. 14364, unreported.
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Appellant then filed an application to reopen his direct appeal
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pursuant to App.R. 26(B), stating that his appellate counsel was ineffective
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for having failed to argue that his trial counsel was ineffective for not
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requesting an instruction on the lesser included offense of assault. The

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court of appeals denied this application. The court stated that since requests
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for jury instructions are notoriously part of trial strategy, the court could not
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determine solely from the record whether appellant's trial counsel was
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ineffective. Appellant appeals the denial to this court.
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______________
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Mathias H. Heck, Jr., Montgomery County Prosecuting Attorney, and
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Carley J. Ingram, Assistant Prosecuting Attorney, for appellee.
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James Griffie, Jr., pro se.
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______________
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Per
Curiam. We affirm the decision of th e court of appeals.
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In his application for reopening, appellant argued that his appellate
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counsel was ineffective for not arguing that his trial counsel was ineffective
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for not requesting an instruction on the lesser included offense of assault.
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However, appellant offers no support for his argument besides the record.
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App.R. 26(B)(2)(e) states that an application for reopening shall contain
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"[a]ny parts of the record available to the applicant and all supplemental
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affidavits upon which the applicant relies." The record may reveal that trial
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counsel did not request a certain jury instruction, but, without more, the

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court of appeals would have to guess as to why trial counsel did not make
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the request. Failure to request instructions on lesser-included offenses is a
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matter of trial strategy and does not establish ineffective assistance of
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counsel. State v. Clayton (1980), 62 Ohio St.2d 45, 16 O.O.3d 35, 402
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N.E.2d 1189, certiorari denied (1980), 449 U.S. 879, 101 S.Ct. 227, 66
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L.Ed.2d 102.
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Under App.R. 26(B)(5), an application for reopening shall be granted
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if there is a genuine issue as to whether the applicant was deprived of the
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effective assistance of counsel on appeal. Since appellant offered no proof
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of appellate counsel's ineffective assistance besides the record, no genuine
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issue was raised. Therefore, we affirm the decision of the court of appeals.
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Judgment affirmed.
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MOYER, C.J., DOUGLAS, WRIGHT, RESNICK, F.E. SWEENEY, PFEIFER
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and COOK, JJ., concur.
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