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

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[Cite as State v. Goff, 98 Ohio St.3d 327, 2003-Ohio-1017.]

THE STATE OF OHIO, APPELLEE, v. GOFF, APPELLANT.
[Cite as State v. Goff, 98 Ohio St.3d 327, 2003-Ohio-1017.]
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. 2002-1579 -- Submitted February 11, 2003 -- Decided March 19, 2003.)
APPEAL from the Court of Appeals for Clinton County, No. CA95-09-026.
__________________

Per Curiam.
{¶1} Appellant, James R. Goff, was convicted of the aggravated murder
of Myrtle Rutledge and sentenced to death. The court of appeals affirmed his
conviction and sentence of death. State v. Goff (Apr. 21, 1997), Clinton App. No.
CA95-09-026, 1997 WL 194898. On appeal as of right, we also affirmed. State
v. Goff (1998), 82 Ohio St.3d 123, 694 N.E.2d 916, certiorari denied, Goff v. Ohio
(1999), 527 U.S. 1039, 119 S.Ct. 2402, 144 L.Ed.2d 800.
{¶2} Subsequently, the trial court dismissed Goff's petition for
postconviction relief, and the court of appeals affirmed. State v. Goff (Mar. 5,
2001), Clinton App. No. CA2000-05-014, 2001 WL 208845. We declined to
accept Goff's appeal of that decision. State v. Goff (2001), 92 Ohio St.3d 1430,
749 N.E.2d 756. Goff also filed a Civ.R. 60(B)(5) motion for relief from
judgment of the trial court's dismissal of his petition for postconviction relief.
The trial court denied Goff's Civ.R. 60(B)(5)1 motion and the court of appeals

1.
{¶a} Civ.R. 60(B)(5) provides:

SUPREME COURT OF OHIO
affirmed. State v. Goff (June 11, 2001), Clinton App. No. CA2000-10-026, 2001
WL 649820. We declined to accept jurisdiction of this appeal. State v. Goff
(2001), 93 Ohio St.3d 1414, 754 N.E.2d 261.
{¶3} On June 28, 2002, Goff 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 Goff 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. Goff (Aug. 14, 2002), Clinton App. No. CA95-09-026.
Additionally, the court of appeals found that Goff 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 Goff'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 to
determine whether a defendant has received the 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, Goff "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

{¶b} "On motion and upon such terms as are just, the court may relieve a party * * *
from a final judgment, order or proceeding for * * * any * * * reason justifying relief from the
judgment."
2

January Term, 2003
justify reopening his appeal, Goff "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.
{¶6} We have reviewed Goff's assertions of deficient performance by
appellate counsel and find that Goff 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 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 E. Peelle, Clinton County Prosecuting Attorney, Deborah S.
Quigley, Assistant Prosecuting Attorney, and Henry G. Appel, Special Assistant
Prosecuting Attorney, for appellee.

David J. Graeff and W. Joseph Edwards, for appellant.
__________________
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