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

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[Cite as State v. Mitts, 98 Ohio St.3d 325, 2003-Ohio-1007.]

THE STATE OF OHIO, APPELLEE, v. MITTS, APPELLANT.
[Cite as State v. Mitts, 98 Ohio St.3d 325, 2003-Ohio-1007.]
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. 2002-1010 -- Submitted February 11, 2003 -- Decided March 19, 2003.)
APPEAL from the Court of Appeals for Cuyahoga County, No. 68612, 2002-Ohio-
7457.
__________________

Per Curiam.
{¶1} Appellant, Harry D. Mitts Jr., was convicted of the aggravated
murders of Sergeant Dennis Glivar of the Garfield Heights Police Department and
John Bryant and was sentenced to death. Mitts was also convicted and sentenced
to prison for the attempted murders of Lieutenant Thomas Kaiser of the Garfield
Heights Police Department and Maple Heights Police Officer Thomas Mackey.
The court of appeals affirmed his convictions and sentences, including the death
sentence. State v. Mitts (Dec. 19, 1996), Cuyahoga App. No. 68612, 1996 WL
732452. On appeal as of right, we also affirmed. State v. Mitts (1998), 81 Ohio
St.3d 223, 690 N.E.2d 522.
{¶2} Subsequently, the trial court denied Mitts's petition for
postconviction relief, and the court of appeals affirmed. State v. Mitts (Sept. 28,
2000), Cuyahoga App. No. 76963, 2000 WL 1433952. We declined to accept
Mitts's appeal of that decision. State v. Mitts (2001), 91 Ohio St.3d 1445, 742
N.E.2d 144.

SUPREME COURT OF OHIO
{¶3} On January 14, 2002, Mitts filed an application in the court of
appeals to reopen his direct appeal pursuant to App.R. 26(B) alleging ineffective
assistance of his appellate counsel before that court. The court of appeals found
that Mitts had failed to establish good cause for filing his application more than
90 days after that court's judgment was journalized, as required by App.R.
26(B)(2)(b). State v. Mitts, Cuyahoga App. No. 68612, 2002-Ohio-7457, 2001
WL 1335629. Additionally, the court of appeals found that Mitts had failed to
meet his burden to establish that there is 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). Thus, the court of appeals also denied Mitts's application for reopening
the appeal on the merits. This cause is now before this court upon an appeal as of
right.
{¶4} The two-prong analysis found in Strickland v. Washington (1984),
466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674, is the appropriate standard by
which to determine whether a defendant has received ineffective assistance of
appellate counsel. See State v. Sheppard (2001), 91 Ohio St.3d 329, 330, 744
N.E.2d 770; State v. Spivey (1998), 84 Ohio St.3d 24, 25, 701 N.E.2d 696; State v.
Reed (1996), 74 Ohio St.3d 534, 534-535, 660 N.E.2d 456.
{¶5} In order to show ineffective assistance, Mitts "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."
Sheppard, 91 Ohio St.3d at 330, 744 N.E.2d 770, 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, Mitts "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." Spivey, 84 Ohio St.3d at 25, 701 N.E.2d 696.
{¶6} We have reviewed Mitts's assertions of deficient performance by
appellate counsel and find that Mitts has failed to raise "a genuine issue as to
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January Term, 2003
whether [he] was deprived of the effective assistance of counsel on appeal" before
the court of appeals, as required by App.R. 26(B)(5).
{¶7} Accordingly, the judgment of the court of appeals is affirmed.
Judgment affirmed.

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

William D. Mason, Cuyahoga County Prosecuting Attorney, and Renee L.
Snow, Assistant Prosecuting Attorney, for appellee.

Harry D. Mitts Jr., pro se.
__________________
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