State v. Graham

Full title: THE STATE OF OHIO, APPELLEE, v. GRAHAM, APPELLANT

Court: Supreme Court of Ohio

Date published: Dec 23, 1994

71 Ohio St. 3d 331 (Ohio 1994)

643 N.E.2d 1097

Opinion

No. 94-1879

Submitted November 29, 1994 —

Decided December 23, 1994.

APPEAL from the Court of Appeals for Cuyahoga County, No. 33350.

According to appellant, Floyd Graham, he was convicted in 1973 of first-degree murder (former R.C. 2901.01), taking the life of a police officer (former R.C. 2901.04), and intentional shooting (former R.C. 2901.23). The Court of Appeals for Cuyahoga County affirmed Graham's convictions, State v. Graham (June 12, 1975), Cuyahoga App. No. 33350, unreported. This court overruled Graham's motion for leave to appeal.

On May 6, 1994, Graham filed in the court of appeals a delayed application for reconsideration of his appeal from the judgment of conviction. The application, filed pursuant to App.R. 14(B) and former App.R. 26, alleged ineffective assistance of appellate counsel. See State v. Murnahan (1992), 63 Ohio St.3d 60, 584 N.E.2d 1204. The court of appeals overruled the application. (May 17, 1994), Cuyahoga App. No. 33350, unreported. Graham did not appeal that judgment.

However, on June 10, 1994, Graham applied again for reopening of the appeal, this time under App.R. 26(B), adopted July 1, 1993. The court of appeals denied this second application because Graham had not shown good cause for failing to file within ninety days after App.R. 26(B) took effect; because the application exceeded the ten-page limit of App.R. 26(B)(4); and because the court's denial of the May 6 application was res judicata to the June 10 application. Nonetheless, the court also examined the application's merits, finding that "there exists no colorable claim of ineffective assistance of appellate counsel." Graham appeals the denial of his June 10 application.

Stephanie Tubbs Jones, Cuyahoga County Prosecuting Attorney, and George J. Sadd, Assistant Prosecuting Attorney, for appellee.

Paul Mancino, Jr., for appellant.

Per Curiam.

We affirm the judgment of the court of appeals for the reasons stated in that court's opinion.

Judgment affirmed.

MOYER, C.J., A.W. SWEENEY, DOUGLAS, WRIGHT, RESNICK, F.E. SWEENEY and PFEIFER, JJ., concur.