THE STATE OF OHIO, APPELLEE, v. BURKE, APPELLANT.
No. 2001-2185
Supreme Court of Ohio
October 16, 2002
97 Ohio St.3d 55 | 2002-Ohio-5310
Appellate procedure—Application to reopen appeal from judgment of conviction based on claim of ineffective assistance of appellate counsel—Court of appeals’ denial of application affirmed, when—Application denied when applicant fails to demonstrate the existence of a genuine issue as to appellate counsel’s effectiveness.
Per Curiam.
{¶1} Appellant, Mark Burke, challenges the denial of his application to reopen his direct appeal under
{¶2} Burke was convicted of aggravated murder and sentenced to death. The Court of Appeals for Franklin County affirmed his conviction and sentence. State v. Burke (Dec. 28, 1993), Franklin App. No. 90AP-1344, 1993 WL 541653. We affirmed the court of appeals’ judgment. State v. Burke (1995), 73 Ohio St.3d 399, 653 N.E.2d 242. The Supreme Court of the United States denied certiorari. Burke v. Ohio (1996), 517 U.S. 1112, 116 S.Ct. 1336, 134 L.Ed.2d 486.
{¶3} On May 22, 2001, Burke‘s counsel filed an
{¶4} In his first proposition of law, Burke contends that he did raise a genuine issue and that his application should therefore have been granted.
{¶5} Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, establishes the standard for judging ineffective-assistance claims. The two-part Strickland test, we have held, “is the appropriate standard to assess a defense request for reopening under
{¶6} Under Strickland, a defendant claiming ineffective assistance of counsel “must show that counsel‘s representation fell below an objective standard of reasonableness.” Id. at 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674. He must also show that the ineffective representation prejudiced his case: “The 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. 2052, 80 L.Ed.2d 674. See, also, State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373, paragraphs two and three of the syllabus.
{¶7} Under Strickland, a court must apply “a heavy measure of deference to counsel‘s judgments,” 466 U.S. at 691, 104 S.Ct. 2052, 80 L.Ed.2d 674, and “indulge a strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance.” Id. at 689, 104 S.Ct. 2052, 80 L.Ed.2d 674. Moreover, since the basis of Burke‘s claim is counsel‘s failure to raise certain issues on appeal, we note 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.
{¶8} The court of appeals, applying Strickland, concluded that Burke‘s application failed to raise any genuine issue of ineffective assistance of counsel. We agree. We therefore overrule Burke‘s first proposition of law.
{¶9} In his second proposition of law, Burke contends that the court of appeals erroneously denied his request for an evidentiary hearing on the application, see
{¶10} This proposition lacks merit. The court of appeals carefully reviewed each of the 20 issues Burke wishes to raise on a reopened appeal. Four of them simply lacked support in the trial record. Clearly, declining to raise claims without record support cannot constitute ineffective assistance of appellate counsel. See State v. Hill (2001), 90 Ohio St.3d 571, 573, 740 N.E.2d 282. Hence, there was no need to inquire into the circumstances surrounding counsel‘s failure to raise these claims.
{¶11} Nor was Burke entitled to a hearing to determine the facts underlying the claims themselves, for “the effectiveness of appellate counsel [cannot] be judged by adding new matter to the record and then arguing that counsel should have raised these new issues revealed by this newly added material.” State v. Moore (2001), 93 Ohio St.3d 649, 650, 758 N.E.2d 1130.
{¶12} The court of appeals determined that appellate counsel‘s failure to raise ten other claims was not deficient performance because four were barred by res judicata, while six were not supported by existing law. Finally, the court determined that counsel‘s failure to raise six other claims was not prejudicial under Strickland. Again, there was no need to inquire into the circumstances surrounding appellate counsel‘s decision not to raise these claims.
{¶13} Finally, as to the appointment of counsel, Burke was, in fact, represented by counsel on his
{¶14} The judgment of the court of appeals is affirmed.
Judgment affirmed.
MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and LUNDBERG STRATTON, JJ., concur.
Law Offices of John S. Marshall and Lori Leon; and Carol A. Wright, for appellant.