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

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[Cite as State v. Mack, 101 Ohio St.3d 397, 2004-Ohio-1526.]

THE STATE OF OHIO, APPELLEE, v. MACK, APPELLANT.
[Cite as State v. Mack, 101 Ohio St.3d 397, 2004-Ohio-1526.]
Appellate procedure -- Application to reopen appeal from judgment of
conviction based on claim of ineffective assistance of appellate counsel
-- Court of appeals' denial of application affirmed, when -- 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. 2003-1162 -- Submitted January 12, 2004 -- Decided April 14, 2004.)
APPEAL from the Court of Appeals for Cuyahoga County, No. 62366, 2003-Ohio-
2605.
____________

Per Curiam.
{¶1} Appellant, Clarence Mack, was convicted of the aggravated
murder and aggravated robbery of Peter Sanelli and was sentenced to death. The
court of appeals affirmed his convictions and sentence of death. State v. Mack
(Dec. 2, 1993), Cuyahoga App. No. 62366, 1993 WL 497052. On appeal as of
right, we also affirmed. State v. Mack (1995), 73 Ohio St.3d 502, 653 N.E.2d
329.
{¶2} Subsequently, the trial court dismissed Mack's petition for post-
conviction relief, and the court of appeals affirmed. State v. Mack (Oct. 26,
2000), Cuyahoga App. No. 77459, 2000 WL 1594117. We declined to accept
Mack's appeal of that decision. State v. Mack (2001), 91 Ohio St.3d 1459, 743
N.E.2d 400.
{¶3} On June 15, 2001, Mack filed an untimely application in the court
of appeals to reopen his direct appeal pursuant to App.R. 26(B), alleging

SUPREME COURT OF OHIO
ineffective assistance of his appellate counsel before that court. The court of
appeals found that many of Mack's arguments were barred by res judicata. The
court of appeals rejected the remaining claims of ineffective assistance on the
merits. This cause is now before this court upon an appeal as of right.
{¶4} 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 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, 535, 660 N.E.2d 456.
{¶5} In order to show ineffective assistance, Mack "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, Mack "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 the assertions of deficient performance by
appellate counsel and find that Mack 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, LUNDBERG STRATTON,
O'CONNOR and O'DONNELL, JJ., concur.
____________

Jeffry F. Kelleher and Michael J. Benza, for appellant.
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January Term, 2004

William D. Mason, Cuyahoga County Prosecuting Attorney, and Jon W.
Oebker, Assistant Prosecuting Attorney, for appellee.
__________________
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