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

	ROMINGER LEGAL
		Ohio Court Cases and Opinions - Ohio Legal Research
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -RESEARCH

This court case was taken from the web sites of the Ohio Courts. Search our site for more cases - CLICK HERE

LEGAL RESEARCH

COURT REPORTERS

PRIVATE INVESTIGATORS

PROCESS SERVERS

DOCUMENT RETRIEVERS

EXPERT WITNESSES

Find a Private Investigator

Find an Expert Witness

Find a Process Server

Case Law - save on Lexis / WestLaw.

Legal News - Legal Headlines

[Cite as State v. Palmer, 92 Ohio St.3d 241, 2001-Ohio-188.]

THE STATE OF OHIO, APPELLEE, v. PALMER, APPELLANT.
[Cite as State v. Palmer (2001), 92 Ohio St.3d 241.]
Appellate procedure -- Application for reopening appeal of judgment of
conviction based on claim of ineffective assistance of appellate counsel
-- Court of appeals' dismissal of application to reopen appeal affirmed
when no genuine issue exists as to whether applicant was denied the
effective assistance of counsel.
(No. 00-2201 -- Submitted April 24, 2001 -- Decided July 11, 2001.)
APPEAL from the Court of Appeals for Belmont County, No. 89-B-28.
__________________

Per Curiam. Appellant, Donald L. Palmer, Jr., was convicted of the
aggravated murders of Charles Sponhaltz and Steven Vargo and sentenced to
death. He was also convicted and sentenced to prison for the aggravated
robberies of Sponhaltz and Vargo. The court of appeals affirmed his convictions
and sentence. State v. Palmer (Aug. 29, 1996), Belmont App. No. 89-B-28,
unreported, 1996 WL 495576. On direct appeal as of right, we also affirmed.
State v. Palmer (1997), 80 Ohio St.3d 543, 687 N.E.2d 685, certiorari denied,
Palmer v. Ohio (1998), 525 U.S. 837, 119 S.Ct. 96, 142 L.Ed.2d 76.

In addition, the trial court denied Palmer's petition for postconviction
relief, and the court of appeals affirmed. State v. Palmer (Oct. 20, 1999),
Belmont App. No. 96BA70, unreported, 1999 WL 979228. We declined to
accept Palmer's appeal. State v. Palmer (2000), 88 Ohio St.3d 1424, 723 N.E.2d
1113.

On May 8, 2000, Palmer filed a "Notice of Intention to file a federal
habeas corpus action" in the United States District Court for the Southern District
of Ohio. On May 18, 2000, the United States District Court appointed counsel to

SUPREME COURT OF OHIO
represent Palmer in connection with the federal habeas proceedings, and on May
31, 2000, that court stayed Palmer's scheduled execution.

On August 28, 2000, Palmer filed an application with the Belmont 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 Palmer 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. Palmer (Oct. 25, 2000), Belmont App.
No. 89B28, unreported. Hence, that court dismissed Palmer's application to
reopen his appeal. The cause is now before this court upon an appeal as of right.

We find that no genuine issue exists as to whether Palmer was denied the
effective assistance of counsel in his initial 1996 appeal. We therefore affirm the
judgment of the court of appeals.

In arguing his first proposition of law, Palmer asserts that "he has a federal
constitutional right * * * to have counsel appointed to assist him in raising a claim
that his [former] appellate counsel rendered ineffective assistance of counsel in
the direct appeal to the * * * Court of Appeals." Essentially, Palmer argues that
he has a constitutional right to two sets of appellate lawyers: one to argue his case
on appeal, and a second to argue that the first was incompetent.

We overrule this proposition of law. Palmer failed to present this issue to
the court of appeals in his application to reopen his appeal and thereby waived the
issue. State v. Williams (1977), 51 Ohio St.2d 112, 5 O.O.3d 98, 364 N.E.2d
1364, paragraph two of the syllabus. Moreover, the issue is moot. Two attorneys
assisted Palmer in preparing his Murnahan application and currently represent
Palmer in the instant Murnahan appeal. Nor has Palmer claimed that if an
attorney had been appointed to assist him in preparing his application that such an
attorney would have raised issues different from those his current counsel have
2

January Term, 2001
raised. As we noted in Tschantz v. Ferguson (1991), 57 Ohio St.3d 131, 133, 566
N.E.2d 655, 657, "No actual controversy exists where a case has been rendered
moot by an outside event." Here, the appearance of attorneys at the court of
appeals on Palmer's behalf has mooted the issue.

In his third proposition, Palmer 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 Palmer 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, [Palmer] 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 the
syllabus. Moreover, to justify reopening his appeal, Palmer "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 Palmer's assertions of deficient performance by
appellate counsel and find that Palmer 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).

In his second proposition of law, Palmer 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 White v. Schotten (C.A.6, 2000), 201 F.3d 743, to support his claim
3

SUPREME COURT OF OHIO
of good cause. However, our disposition of Palmer's third proposition, on the
merits, negates any need to decide that issue. 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.
__________________

Frank Pierce, Belmont County Prosecuting Attorney, and Robert W.
Quirk, Assistant Prosecuting Attorney, for appellee.

Keith A. Yeazel and Michael J. O'Hara, for appellant.
__________________
4