State v. Apanovitch

Parrino, Judge,

dissenting.

Appellant made a claim of ineffective assistance of appellate counsel in his petition for postconviction relief. It was denied by the trial court.

Upon the authority of

State v. Howard

(1989), 42 Ohio St.3d 18 , 537 N.E.2d 188 , I respectfully dissent from the disposition of appellant’s fourth, eighth and eleventh assignments of error. Cf.

Manning v. Alexander

(C.A.6, 1990), 912 F.2d 878 . Under this decision, it is my opinion that this court in the instant case is required to address and determine appellant’s claims of the ineffective assistance of appellate counsel.

APPENDIX

Appellant’s assignments of error are:

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I

“The trial court erred by failing to find that appellant Apanovitch was denied the effective assistance of counsel in violation of the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Sections 10 and 16, Article I of the Ohio Constitution for the reason that trial counsel was incompetent with respect to the serological evidence introduced at trial.”

II

“The trial court erred by failing to find that appellant was denied due process of law and the right to confront his witnesses in violation of the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Sections 10 and 16, Article I of the Ohio Constitution for the reason that the prosecution failed to disclose evidence which was favorable to the defendant and material to his guilt.”

III

“The trial court erred by failing to grant appellant Apanovitch a new trial.”

IV

“The trial court erred by failing to find that appellant Apanovitch was denied the effective assistance of counsel on direct appeal as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Sections 10 and 16, Article I of the Ohio Constitution.”

V

“The trial court erred by failing to conclude that there is not sufficient evidence to sustain appellant Apanovitch’s conviction in violation of appellant’s right of due process of law and right against cruel and unusual punishment as guaranteed by the Fifth, Eighth and Fourteenth Amendments of the United States Constitution and Sections 9 and 16, Article I of the Ohio Constitution.”

VI

“The trial court erred by failing to find that appellant Apanovitch’s conviction is against the manifest weight of the evidence in violation of his right to due process of law and right against cruel and unusual punishment as guaranteed by the Fifth, Eighth and Fourteenth Amendments of the United States Constitution and Sections 9 and 16, Article I of the Ohio Constitution.”

*764

VII

“The trial court erred by failing to find that inflammatory and prejudicial hearsay evidence was admitted at appellant’s trial, thereby violating his right of due process of law as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and Section 16, Article I of the Ohio Constitution.”

VIII

“The trial court erred in failing to find that appellant Apanovitch was denied the effective assistance of counsel on appeal as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Sections 10 and 16, Article I of the Ohio Constitution.”

IX

“The trial court erred by failing to find that appellant Apanovitch was denied due process of law in violation of the Fifth and Fourteenth Amendments to the United States Constitution and Section 16, Article I of the Ohio Constitution for the reason that the serological evidence in the present case has not been preserved.”

X

“The trial court erred by failing to find that appellant was denied a fair right to his appellate process in violation of the Fifth, Eighth and Fourteenth Amendments of the United States Constitution and Sections 9 and 16, Article I of the Ohio Constitution.”

XI

“The trial court erred by failing to find that appellant received ineffective assistance of counsel in violation of his right to counsel under the Sixth Amendment to the United States Constitution and Section 10, Article I of the Ohio Constitution, as well as due process protection under the Fourteenth Amendment to the United States Constitution and Section 16, Article I of the Ohio Constitution for the reason that trial counsel failed to adequately investigate and present an alibi defense.”