# State v. Murnahan

> Ohio Supreme Court · February 19, 1992 · 63 Ohio St. 3d 60

URL: https://www.frixlaw.com/law-library/cases/6764582

## Case

- **Full name:** The State of Ohio v. Murnahan
- **Court:** Ohio Supreme Court
- **Decided:** February 19, 1992
- **Citations:** 63 Ohio St. 3d 60; 584 N.E.2d 1204; 1992 Ohio LEXIS 225
- **Precedential status:** Published
- **Opinion:** Dissent by Sweeney
- **Judges:** Brown, Douglas, Holmes, Moyer, Resnick, Sweeney, Wright
- **Cited by:** 729 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Superseded by statute, as recognized in State v. Davis.
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6764582

## How later opinions describe it (automated extraction)

- recognizing that it may be unjust to apply res judicata in certain circumstances, such as when a defendant is unable to discover an ineffective assistance of appellate counsel claim, due to inadequate appellate counsel or the defendant’s inability to identify appellate counsel…
- recognizing the propriety of challenging ineffective appellate counsel via a motion for reconsideration and leading to the adoption of App.R. 26(B)
- establishing rule that defendants could not raise ineffective- assistance claims in post-conviction proceedings
- finding petitioner’s failure to appeal initial denial of Rule 26(B

## Opinion text

Sweeney, J.,
dissenting. The majority opinion unwisely negates the best meáhs for enforcing one’s right to effective counsel at the appellate level by replacing post-conviction relief with the much weaker and discretionary substitute of delayed reconsideration on appeal. For that reason and the reasons that follow, I must dissent.
The right to effective assistance of appellate counsel is guaranteed under the Ohio and United States Constitutions. In re Petition of Brown (1990), 49 Ohio St.3d 222 , 551 N.E.2d 954 ; Evitts v. Lucey (1985), 469 U.S. 387 , 105 S.Ct. 830 , 83 L.Ed.2d 821 ; Anders v. California (1967), 386 U.S. 738 , 87 S.Ct. 1396 , 18 L.Ed.2d 493 . In order to provide a meaningful review of what is essentially a mixed question of law and fact, see Sumner v. Mata (1982), 455 U.S. 591 , 102 S.Ct. 1303 , 71 L.Ed.2d 480 , a claim of ineffective assistance of appellate counsel should be carefully reviewed and a complete record developed. In my view, the trial courts of this state, not the courts of appeals, are best equipped to make the necessary record to ensure that a defendant’s constitutional right to effective counsel on appeal has been secured. 9
As the United States Supreme Court stated in Evitts, supra, at 399-400 , 105 S.Ct. at 838 , 83 L.Ed.2d at 832 , “[a] system of appeal as of right is established precisely to assure that only those who are validly convicted have their *68 freedom drastically curtailed. A State may not extinguish this right because another right of the appellant — the right to effective assistance of counsel— has been violated.” By precluding a collateral attack upon the effectiveness of appellate counsel, the majority has extinguished the right to appeal in those cases in which the court of appeals chooses not to grant defendant’s application for reconsideration or this court declines to certify jurisdiction over direct appeal. Motions for reconsideration or delayed appeal and jurisdictional motions to this court are granted and decided on different criteria than those used to review cases admitted on the merits. Thus, neither the possibility of a delayed appeal nor the granting of a motion to accept jurisdiction is an acceptable solution. Unless we are prepared to accept the notion that a court of appeals has no discretion to reject a delayed request for reconsideration in those cases in which there is a colorable claim of ineffective appellate counsel, the majority opinion clearly fails to protect a defendant’s right of appeal.
In accordance with the instruction that “[rjemedial laws and all proceedings under them shall be liberally construed in order to promote their object and assist the parties in obtaining justice,” R.C. 1.11, I would construe R.C. 2953.21 as permitting claims of ineffective assistance of appellate counsel in post-conviction proceedings. I recognize that a plethora of frivolous assertions of ineffective appellate counsel may ensue. That, however, is not a reason to eliminate a remedy in all cases, including the case where the claim has merit. Experience has shown that appeals in criminal cases and post-conviction proceedings are rife with somewhat perfunctory, rote and sometimes frivolous assertions of error. However, those assertions of error involving “ineffective appellate representation” can be dispatched as expeditiously as any other frivolous claim — but there should be a remedy for the claim that has constitutional merit. The majority’s opinion does not provide that remedy. Accordingly, I would affirm the court of appeals.
Wright and H. Brown, JJ., concur in the foregoing dissenting opinion.
. I am somewhat sympathetic to the concern expressed by the majority that post-conviction proceedings would “in effect permit trial courts to second-guess superior appellate courts.” I note, however, that a number of federal appellate courts that have addressed the issue have held that federal district courts, not federal circuit courts, are the first arbiters of claims of ineffective appellate counsel raised under Section 2255, Title 28, U.S. Code, the federal counterpart to R.C. 2953.21. See, e.g., Page v. United States (C.A.7, 1989), 884 F.2d 300, 301-302 . If our fellow jurists in the federal system are not troubled by the prospect of a trial court determining whether there has been ineffective assistance of appellate counsel and providing remedies for the same, I cannot see any reason why we should be.
Even if a trial court understandably would not feel comfortable ordering a new appeal, I would read R.C. 2953.21 as permitting the trial court to vacate its prior judgment and to reinstate the conviction for the purpose of providing a new appeal. Through this procedure, a trial court would not directly tread upon the jurisdictional prerogatives of a court of appeals, but would grant relief on an issue that, unaddressed by the court of appeals, is as open in the trial court as any other question would be under R.C. 2953.21.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6764582. Public record. Not legal advice.