State v. Fautenberry

[This opinion has been published in Ohio Official Reports at 

78 Ohio St.3d 320

.]




         THE STATE OF OHIO, APPELLEE, V. FAUTENBERRY, APPELLANT.
                   [Cite as State v. Fautenberry, 

1997-Ohio-291

.]
Appellate procedure—Application for reopening appeal from judgment and
        conviction based on claim of ineffective assistance of appellate counsel—
        Application denied when applicant fails to establish good cause for failing
        to file his application within ninety days after journalization of the court
        of appeals’ decision affirming the conviction, as required by App.R.
        26(B)—Application denied when barred by res judicata—Application
        denied when applicant fails to establish the existence of a colorable claim
        of ineffective assistance of appellate counsel.
       (No. 96-2521—Submitted March 4, 1997—Decided April 30, 1997.)
     APPEAL from the Court of Appeals for Hamilton County, No. C-920734.
                                  __________________
        {¶ 1} Appellant, John Fautenberry, was convicted of two counts of
aggravated murder with specifications, and of aggravated robbery and two felony
theft offenses. He was sentenced to death. Upon appeal, the court of appeals
affirmed the convictions and sentence.           State v. Fautenberry (Feb. 9, 1994),
Hamilton App. No. C-920734, unreported, 

1994 WL 35023

. On direct appeal as
of right, we also affirmed his convictions and sentence. State v. Fautenberry
(1995), 

72 Ohio St.3d 435

, 

650 N.E.2d 878

, certiorari denied (1995), 

516 U.S. __

,

116 S.Ct. 534

, 

133 L.Ed.2d 439

.
        {¶ 2} On March 28, 1996, appellant filed an “Application for
Reconsideration and Reopening” with this court pursuant to former S. Ct. Prac. R.
XI(1)(B) and State v. Murnahan (1992), 

63 Ohio St.3d 60

, 

584 N.E.2d 1204

,
alleging ineffective assistance of appellate counsel on his direct appeal before this
                             SUPREME COURT OF OHIO




court. This court, treating the application as a motion for reconsideration, denied
the motion. State v. Fautenberry (1996), 

75 Ohio St.3d 1475

, 

663 N.E.2d 1302

.
       {¶ 3} On July 24, 1996, appellant filed an application for reopening in the
court of appeals pursuant to App. R. 26(B), alleging ineffective assistance of
appellate counsel. In an entry dated October 17, 1996, the court of appeals denied
the application as untimely, no good cause having been shown pursuant to App.R.
26 (B)(2)(b). The appellate court further found the application to be barred by res
judicata, since appellate counsel’s ineffectiveness before the court of appeals could
have been raised in the motion for reconsideration filed before the Supreme Court.
       {¶ 4} On October 28, 1996, appellant filed a motion for reconsideration in
the court of appeals that questioned Judge Marianna Brown Bettman’s impartiality
in the denial of appellant’s application for reopening. The appellate court overruled
the motion, finding that the endorsement of the prior entry of denial by Judge
Bettman was undertaken “in her administrative capacity as Presiding Judge of this
Court, which does not indicate that she made the judicial determination to deny said
application.” This appeal followed.
                              __________________
       Joseph T. Deters, Hamilton County Prosecuting Attorney, and Ronald W.
Springman, Jr., Assistant Prosecuting Attorney, for appellee.
       David H. Bodiker, Ohio Public Defender, Lori Ann McGinnis and Stephen
P. Hardwick, Assistant Public Defenders, for appellant.
                              __________________
       Per Curiam.
       {¶ 5} We affirm the judgments of the court of appeals denying appellant’s
application for reopening and motion for reconsideration for the same reasons
articulated by the court of appeals. Further, appellant has failed to establish the
existence of a colorable claim of ineffective assistance of appellate counsel under




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                                January Term, 1997




Strickland v. Washington (1984), 

466 U.S. 668

, 

104 S.Ct. 2052

, 

80 L.Ed.2d 674

.
We reject all of appellant’s propositions of law raised before this court.
                                                                Judgments affirmed.
       MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
LUNDBERG STRATTON, JJ., concur.
                               __________________




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