State v. Sanders

[This decision has been published in Ohio Official Reports at 

94 Ohio St.3d 150

.]




      THE STATE OF OHIO, APPELLEE, v. SANDERS, N.K.A. HASAN, APPELLANT.
                      [Cite as State v. Sanders, 

2002-Ohio-350

.]
Appellate procedure—Application for reopening appeal from judgment of
         conviction based on claim of ineffective assistance of appellate counsel—
         Application denied when applicant fails to show the existence of a genuine
         issue as to whether he had been denied the effective assistance of counsel
         on appeal as required by App.R. 26(B)(5).
      (No. 99-536—Submitted September 18, 2001—Decided January 30, 2002.)
       APPEAL from the Court of Appeals for Hamilton County, No. C-960253.
                                  __________________
         Per Curiam.
         {¶ 1} Appellant, Carlos Sanders, n.k.a. Siddique Abdullah Hasan,
challenges the denial of his application to reopen his direct appeal under App.R.
26(B).
         {¶ 2} Sanders was sentenced to death for the aggravated murder of
Correctional Officer Robert Vallandingham. The Court of Appeals for Hamilton
County affirmed his convictions and sentences. State v. Sanders (May 1, 1998),
Hamilton App. No. C-960253, unreported, 

1998 WL 212756

. We affirmed the
court of appeals’ judgment. State v. Sanders (2001), 

92 Ohio St.3d 245

, 

750 N.E.2d 90

.
         {¶ 3} On July 24, 1998, Sanders filed his App.R. 26(B) application in the
court of appeals. That court denied the application, holding that Sanders had failed
to show the existence of a genuine issue as to whether he had been denied the
effective assistance of counsel on appeal. State v. Sanders (Feb. 4, 1999), Hamilton
App. No. C-960253, unreported.
                             SUPREME COURT OF OHIO




       {¶ 4} App.R. 26(B)(5) requires that the applicant show “a genuine issue as
to whether the applicant was deprived of the effective assistance of counsel on
appeal.” As the court of appeals recognized, Strickland v. Washington (1984), 

466 U.S. 668

, 

104 S.Ct. 2052

, 

80 L.Ed.2d 674

, sets forth the standard for judging
ineffective-assistance claims. “When a convicted defendant complains of the
ineffectiveness of counsel’s assistance, the defendant must show that counsel’s
representation fell below an objective standard of reasonableness.” 

Id. at 687-688

,

104 S.Ct. at 2064

, 

80 L.Ed.2d at 693

. Furthermore, “[t]he defendant must show
that there is a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different. A reasonable probability is
a probability sufficient to undermine confidence in the outcome.” 

Id. at 694

, 

104 S.Ct. at 2068

, 

80 L.Ed.2d at 698

. See, also, State v. Bradley (1989), 

42 Ohio St.3d 136

, 

538 N.E.2d 373

, paragraphs two and three of the syllabus.
       {¶ 5} Strickland charges us to “[apply] a heavy measure of deference to
counsel’s judgments,” 

466 U.S. at 691

, 

104 S.Ct. at 2066

, 

80 L.Ed.2d at 695

, and
to “indulge a strong presumption that counsel’s conduct falls within the wide range
of reasonable professional assistance,” 

id. at 689

, 

104 S.Ct. at 2065

, 

80 L.Ed.2d at 694

. Moreover, we must bear in mind that appellate counsel need not raise every
possible issue in order to render constitutionally effective assistance. See Jones v.
Barnes (1983), 

463 U.S. 745

, 

103 S.Ct. 3308

, 

77 L.Ed.2d 987

.
       {¶ 6} Finally, we note that courts must “judge the reasonableness of
counsel’s challenged conduct on the facts of the particular case, viewed as of the
time of counsel’s conduct.” Strickland, 

466 U.S. at 690

, 

104 S.Ct. at 2066

, 

80 L.Ed.2d at 695

.
       {¶ 7} The two-part Strickland test “is the appropriate standard to assess a
defense request for reopening under App.R. 26(B)(5).” State v. Spivey (1998), 

84 Ohio St.3d 24, 25

, 

701 N.E.2d 696, 697

. Applying Strickland, we agree with the




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                                January Term, 2002




court of appeals’ conclusion that Sanders has failed to raise a genuine issue of
ineffective assistance of counsel.
       {¶ 8} Accordingly, we affirm the judgment of the court of appeals.
                                                             Judgment affirmed.
       MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
LUNDBERG STRATTON, JJ., concur.
                               __________________
       Mark C. Piepmeier, Special Prosecuting Attorney, and William E. Breyer,
Assistant Special Prosecuting Attorney, for appellee.
       Patricia A. Millhoff, for appellant.
                               __________________




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