State v. Cooey

[This opinion has been published in Ohio Official Reports at 

73 Ohio St.3d 411

.]




             THE STATE OF OHIO, APPELLEE, v. COOEY, APPELLANT.
                       [Cite as State v. Cooey, 

1995-Ohio-328

.]
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 timely application to reopen.
       (No. 95-435—Submitted June 21, 1995—Decided August 30, 1995.)
        APPEAL from the Court of Appeals for Summit County, No. 12943.
                                  __________________
        {¶ 1} Appellant, Richard Cooey II, was convicted of four counts of
aggravated murder, with three capital specifications attached to each count; two
counts of kidnapping; two counts of rape; two counts of aggravated robbery; and
one count of felonious assault. He received two sentences of death. The court of
appeals affirmed the convictions and sentences. State v. Cooey (Dec. 23, 1987),
Summit App.No. 12943. On direct appeal as of right, we also affirmed appellant’s
convictions and death sentences. State v. Cooey (1989), 

46 Ohio St. 3d 20

, 

544 N.E.2d 895

, certiorari denied, Cooey v. Ohio (1990), 

499 U.S. 954

, 

111 S.Ct. 1431

,

113 L. Ed.2d 482

, rehearing denied (1991), 

500 U.S. 938

, 111 S Ct. 2068, 

114 L. Ed.2d 472

.
        {¶ 2} Appellant’s original ineffective assistance of counsel claim was filed
as a post-conviction action on February 6, 1992. On February 19, 1992, this court
decided in State v. Murnahan (1992), 

63 Ohio St. 3d 60

, 

584 N.E.2d 1204

, that
ineffective assistance of appellate counsel claims were not cognizable in post-
conviction actions. On appeal from the dismissal of appellant’s post-conviction
action, the court of appeals held that Murnahan controlled and that appellant’s
ineffective assistance of appellate counsel claim could not be heard in a post-
                               SUPREME COURT OF OHIO




conviction proceeding. State v. Cooey (May 25, 1994), Summit App. Nos. 15895
and 15966, unreported. On July 1, 1993, App.R. 26 (B) became effective, requiring
that an application to reopen an appeal, where ineffective assistance of appellate
counsel is alleged, be filed within ninety days from the journalization of the
appellate judgment.
          {¶ 3} Appellant filed an application to reopen his direct appeal on
November 3, 1994, almost seven years after the conclusion of his direct appeal and
over one year after App. R. 26 (B) became effective. The court of appeals denied
appellant’s application to reopen, finding that he had failed to establish good cause
for not filing the application to reopen within ninety days from the effective date of
App.R. 26(B), July 1, 1993. Appellant appeals the denial of his application.
                                 __________________
          Maureen O’Connor, Summit County Prosecuting Attorney, and William D.
Wellemeyer, Assistant Prosecuting Attorney, for appellee.
          David H. Bodiker, Ohio Public Defender, Cynthia A. Yost and William S.
Lazarow, Assistant Public Defenders, for appellant.
                                 __________________
          Per Curiam.
          {¶ 4} Appellant has failed to show good cause for the untimely filing of his
application to reopen. See State v. Reddick (1995), 

72 Ohio St.3d 88

, 

647 N.E.2d 784

. We therefore affirm the judgment of the court of appeals.
                                                                  Judgment affirmed.
          MOYER, C.J., DOUGLAS, WRIGHT, RESNICK, F.E. SWEENEY and PFEIFER, JJ.,
concur.
          COOK, J., not participating.
                               __________________




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