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

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[Cite as State v. Smith, 95 Ohio St.3d 127, 2002-Ohio-1753.]

THE STATE OF OHIO, APPELLEE, v. SMITH, APPELLANT.
[Cite as State v. Smith, 95 Ohio St.3d 127, 2002-Ohio-1753.]
Appellate procedure -- Application to reopen appeal from judgment of
conviction based on claim of ineffective assistance of appellate counsel
-- Application denied when applicant fails to raise a genuine issue as to
whether he was deprived of the effective assistance of counsel on appeal
as required by App.R. 26(B)(5).
(No. 2001-1540 -- Submitted January 8, 2002 -- Decided May 1, 2002.)
APPEAL from the Court of Appeals for Lorain County, No. 96CA006331.
__________________

Per Curiam.
{¶1} Appellant, Raymond A. Smith, challenges the denial of his
application to reopen his direct appeal under App.R. 26(B).
{¶2} Smith was convicted of the aggravated murder of Ronald Lally and
sentenced to death. Upon appeal, the court of appeals affirmed the conviction and
death sentence. State v. Smith (Mar. 25, 1998), Lorain App. No. 96CA006331,
1998 WL 158966. We also affirmed his conviction and sentence on January 5,
2000. State v. Smith (2000), 87 Ohio St.3d 424, 721 N.E.2d 93.
{¶3} Soon afterwards, the court of appeals affirmed the trial court's
decision to deny Smith's petition for postconviction relief. State v. Smith (Mar.
15, 2000), Lorain App. No. 98CA007169, 2000 WL 277912. We refused to
accept Smith's appeal of that decision. State v. Smith (2000), 89 Ohio St.3d 1453,
731 N.E.2d 1140.
{¶4} On July 17, 2001, appellant filed a pro se application for reopening
with the court of appeals pursuant to App.R. 26(B) and State v. Murnahan (1992),
124848

SUPREME COURT OF OHIO
63 Ohio St.3d 60, 584 N.E.2d 1204, alleging ineffective assistance of appellate
counsel in his direct appeal.
{¶5} In denying appellant's application for reopening, the court of
appeals essentially found that Smith 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. Smith (Aug. 2, 2001), Lorain App. No.
96CA006331. We then denied Smith's motion for appointment of counsel to
represent him in his application for reopening pursuant to App.R. 26(B) on
September 26, 2001. State v. Smith (2001), 93 Ohio St.3d 1432, 755 N.E.2d 355.
The cause is now before this court upon an appeal as of right.
{¶6} We affirm the judgment of the court of appeals, albeit for different
reasons. 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 Smith has raised a "genuine issue" as to the ineffectiveness of appellate
counsel in his request to reopen under App.R. 26(B)(5). See State v. Spivey
(1998), 84 Ohio St.3d 24, 25, 701 N.E.2d 696. To show ineffective assistance,
Smith 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 they
presented those claims on appeal. State v. Bradley (1989), 42 Ohio St.3d 136,
538 N.E.2d 373, paragraph three of the syllabus.
{¶7} Moreover, to justify reopening his appeal, Smith "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 696.
{¶8} Strickland charges us to "appl[y] a heavy measure of deference to
counsel's judgments," 466 U.S. at 691, 104 S.Ct. 2052, 80 L.Ed.2d 674; and to
"indulge a strong presumption that counsel's conduct falls within the wide range
of reasonable professional assistance," id. at 689, 104 S.Ct. 2052, 80 L.Ed.2d 674.
2

January Term, 2002
Moreover, we must bear in mind that appellate counsel need not raise every
possible issue in order to render constitutionally effective assistance. See Jones v.
Barnes (1983), 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987; State v. Sanders
(2002), 94 Ohio St.3d 150, 761 N.E.2d 18.
{¶9} We have reviewed appellant's four propositions of law alleging,
inter alia, deficient performance by appellate counsel. We rejected several of
these same arguments on Smith's appeal before this court. See State v. Smith, 87
Ohio St.3d 424, 721 N.E.2d 93. In any case, however, in none of the four
propositions of law has Smith raised "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). (Emphasis added.)
{¶10} Accordingly, we affirm the judgment of the court of appeals.
Judgment affirmed.

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

Gregory A. White, Lorain County Prosecuting Attorney, and Jonathan E.
Rosenbaum, Assistant Prosecuting Attorney, for appellee.

Raymond A. Smith, pro se.
__________________
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