State v. DePew

[This opinion has been published in Ohio Official Reports at 

70 Ohio St.3d 1219

.]




             THE STATE OF OHIO, APPELLEE, v. DEPEW, APPELLANT.
                        [Cite as State v. DePew, 

1994-Ohio-7

.]
Motions for delayed reinstatement of appeal and for delayed reconsideration
        denied.
    (No. 87-1334—Submitted August 17, 1994—Decided November 9, 1994.)
   ON MOTIONS FOR DELAYED REINSTATEMENT OF APPEAL AND FOR DELAYED
                                   RECONSIDERATION.
                                  __________________
        {¶ 1} Appellant, Rhett G. DePew, was convicted of three aggravated
murders and sentenced to death. On direct appeal as of right, the court of appeals
affirmed the conviction and sentence. State v. DePew (June 29, 1987), Butler App.
No. CA85-07-075, unreported, 

1987 WL 13709

. We also affirmed when he
appealed to this court. State v. DePew (1988), 

38 Ohio St.3d 275

, 

528 N.E.2d 542

,
certiorari denied (1989), 

489 U.S. 1042

, 

109 S.Ct. 1099

, 

103 L.Ed.2d 241

. DePew
then petitioned the trial court for postconviction relief under R.C. 2953.21; that
petition was dismissed, and the court of appeals affirmed the dismissal. State v.
DePew (Aug. 10, 1992), Butler App. No CA90-09-187, unreported, 

1992 WL 193691

, jurisdictional motion overruled (1992), 

65 Ohio St.3d 1475

, 

604 N.E.2d 167

. Next, DePew filed a motion for delayed reinstatement of his appeal as of right
in this court. Next, DePew filed a motion for delayed reconsideration of his direct
appeal in the court of appeals, pursuant to App.R. 26(B), claiming that he had been
denied effective assistance of counsel when that court first considered his case in
1987. (See State v. Murnahan [1992], 

63 Ohio St.3d 60

, 

584 N.E.2d 1204

.) The
court of appeals granted that motion in part, State v. DePew (Sept. 7, 1993), Butler
App. No. CA85-07-075, unreported, and on reconsideration reaffirmed its original
decision, State v. DePew (May 9, 1994), Butler App. No. CA85-070-75,
                             SUPREME COURT OF OHIO




unreported, 

1994 WL 178405

. DePew appealed that judgment and we affirmed.
State v. DePew (1994), 

70 Ohio St.3d 1435

, 

638 N.E.2d 1039

. DePew now
separately claims that he lacked effective assistance of counsel in his 1988 direct
appeal to this court, and therefore asks us to reconsider his direct appeal under
S.Ct.Prac. R. XI(1)(B).
                               _________________
       John F. Holcomb, Butler County Prosecuting Attorney, and Daniel G.
Eichel, Assistant Prosecuting Attorney, for appellee.
       David H. Bodiker, Ohio Public Defender, Jane P. Perry and Richard J.
Vickers, Assistant Public Defenders, for appellant.
                               __________________
       Per Curiam.
       {¶ 2} We deny the motions. DePew's 1988 appeal to this court was not a
first appeal as of right; therefore, he had no constitutional right to counsel, hence
no constitutional right to effective assistance. See State v. Buell (1994), 

70 Ohio St.3d 1211

, 

639 N.E.2d 110

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




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