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

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[Cite as State v. Biros, 93 Ohio St.3d 250, 2001-Ohio-1339]

THE STATE OF OHIO, APPELLEE, v. BIROS, APPELLANT.
[Cite as State v. Biros (2001), 93 Ohio St.3d 250.]
Appellate procedure -- Application for reopening appeal from judgment of
conviction based on claim of ineffective assistance of appellate counsel
-- Application denied when claimant fails to raise a genuine issue as to
whether he was deprived of the effective assistance of counsel on appeal
as required under App.R. 26(B)(5) -- Court of appeals' denial of
application to reopen appeal affirmed.
(No. 01-317 -- Submitted July 17, 2001 -- Decided September 26, 2001.)
APPEAL from the Court of Appeals for Trumbull County, No. 91-T-4632.
__________________

Per Curiam. Appellant, Kenneth L. Biros, was convicted of the
aggravated murder of Tami Engstrom and sentenced to death. He was also
convicted and sentenced to prison for felonious sexual penetration, aggravated
robbery, and attempted rape. The court of appeals upheld the death sentence but
set aside the findings of guilt of aggravated robbery as it related to the felony-
murder charge and the death specification charging murder during an aggravated
robbery. State v. Biros (Dec. 29, 1995), Trumbull App. No. 91-T-4632,
unreported. On direct appeal as of right, we reinstated the findings of guilt as to
aggravated robbery, affirmed the remaining convictions, and affirmed the death
penalty. State v. Biros (1997), 78 Ohio St.3d 426, 678 N.E.2d 891, certiorari
denied, Biros v. Ohio (1997), 522 U.S. 1002, 118 S.Ct. 574, 139 L.Ed.2d 413.

Subsequently, the trial court denied Biros's petition for postconviction
relief, and the court of appeals affirmed. State v. Biros (May 28, 1999), Trumbull
App. No. 98-T-0051, unreported, 1999 WL 391090. We declined to accept
Biros's appeal. State v. Biros (1999), 87 Ohio St.3d 1406, 716 N.E.2d 1168.

SUPREME COURT OF OHIO

On September 15, 2000, Biros filed an application with the Trumbull
County Court of Appeals to reopen his appeal from his conviction pursuant to
App.R. 26(B) and State v. Murnahan (1992), 63 Ohio St.3d 60, 584 N.E.2d 1204,
alleging ineffective assistance of appellate counsel before that court. However,
the court of appeals found that Biros had failed to show good cause for filing his
application more than ninety days after that court's judgment was journalized, as
required by App.R. 26(B)(2)(b). State v. Biros (Dec. 27, 2000), Trumbull App.
No. 91-T-4632, unreported. Hence, that court denied Biros's application to
reopen his appeal. The cause is now before this court upon an appeal as of right.

In his first proposition of law, Biros argues that he had good cause for the
late filing of his application for reconsideration under App.R. 26(B) and relies, in
part, upon Paris v. Turner (C.A.6, 1999), 187 F.3d 637, decision reported without
opinion; opinion at 1999 WL 357815, to support his claim of good cause.
However, our disposition of Biros's remaining propositions, on the merits,
negates any need to decide that issue.

In his second and third propositions of law, Biros asserts that his counsel
have established a genuine issue as to whether he was denied the effective
assistance of counsel in his initial appeal to the court of appeals. The two-
pronged analysis found in Strickland v. Washington (1984), 466 U.S. 668, 104
S.Ct. 2052, 80 L.Ed.2d 674, is the appropriate standard to assess whether Biros
has raised a genuine issue as to the ineffectiveness of appellate counsel in his
request to reopen under App.R. 26(B)(5). State v. Spivey (1998), 84 Ohio St.3d
24, 25, 701 N.E.2d 696, 697; State v. Reed (1996), 74 Ohio St.3d 534, 535, 660
N.E.2d 456, 458. "To show ineffective assistance, [Biros] must prove that his
counsel were deficient for failing to raise the issues he now presents and that there
was a reasonable probability of success had he presented those claims on appeal."
State v. Sheppard (2001), 91 Ohio St.3d 329, 330, 744 N.E.2d 770, 771, citing
State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373, paragraph three of
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January Term, 2001
the syllabus. Moreover, to justify reopening his appeal, Biros "bears the burden
of establishing that there was a `genuine issue' as to whether he has a `colorable
claim' of ineffective assistance of counsel on appeal." State v. Spivey, 84 Ohio
St.3d at 25, 701 N.E.2d at 697.

We have reviewed Biros's assertions of deficient performance by
appellate counsel and find that Biros has failed to raise "a genuine issue as to
whether [he] was deprived of the effective assistance of counsel on appeal" before
the court of appeals, as required under App.R. 26(B)(5). Accordingly, the
judgment of the court of appeals is affirmed.
Judgment
affirmed.

MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
LUNDBERG STRATTON, JJ., concur.
__________________

Dennis Watkins, Trumbull County Prosecuting Attorney, and LuWayne
Annos, Assistant Prosecuting Attorney, for appellee.

David Bodiker, State Public Defender, and Angie Greene, Assistant Public
Defender, for appellant.
__________________
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