State v. Harrison, 88957 (3-3-2008)State v. Harrison, 88957 (3-3-2008)
{¶ 1} On October 5, 2007, the applicant, Delbert Harrison, pursuant to
{¶ 2} In State v. Harrison, Cuyahoga County Common Pleas Court Case No. CR-456017, a jury found Harrison guilty of the above-listed offenses involving his seven year-old niece, and the trial judge found him guilty of the sexually violent predator specifications. The court then sentenced him to consecutive life sentences without parole on the rape counts, five years to life on the gross sexual imposition charges, and ten years to life for kidnapping. The latter three sentences were to run concurrently with each other and with the life sentences.
{¶ 3} On appeal, State v. Harrison, Cuyahoga App. No. 86925, 2006-Ohio-4119, (hereinafter the “First Appeal“), Harrison argued (1) the trial court inappropriately considered facts not in evidence in finding him to be a sexually violent predator, (2) there was insufficient evidence to support the verdict and (3) the trial court failed to make the necessary findings under
{¶ 4} Harrison then retained Paul Mancino, who filed an
{¶ 5} On remand the trial court reimposed its initial sentence. Mancino filed the Second Appeal in which he argued (1) the trial court denied Harrison due process when it sentenced him as a sexually violent predator when the specification failed to allege any of the elements of that enhancement, (2) the trial court denied Harrison due process when it used the present conviction to find him to be a sexually violent predator, (3) trial counsel was ineffective because he was sleeping during the trial, (4) the trial court erred by failing to make a full and fair inquiry into whether
{¶ 6} Harrison now argues in this application to reopen that Mancino was ineffective for the following reasons: He failed to give Harrison a transcript so Harrison could file a timely
{¶ 7} First, Harrison‘s argument, that Mancino was ineffective because he did not send Harrison a copy of the transcript, is not an authentic claim for ineffective assistance of appellate counsel under
{¶ 8} The law of the case doctrine now bars Harrison‘s other arguments. This “doctrine provides that the decision of a reviewing court in a case remains the law of the case on the legal questions involved for all subsequent proceedings in the case at both the trial and reviewing levels.” Nolan v. Nolan (1984), 11 Ohio St.3d 1, 3, 462 N.E.2d 410. Thus, “the doctrine of law of the case precludes a litigant from attempting to rely on arguments at a retrial which were fully pursued, or available to be pursued, in a first appeal. New arguments are subject to issue preclusion, and are barred.” City of Hubbard ex rel. Creed v. Sauline, 74 Ohio St.3d 402, 404-405, 1996-Ohio-174, 699 N.E.2d 781.
{¶ 9} In the present case, when this court affirmed the convictions in the First Appeal, the propriety of those convictions became the law of the case, and subsequent arguments seeking to overturn them became barred. Thus, in the Second Appeal, only arguments relating to the resentencing were proper. This court recognized this principle when Mancino tried to “bootstrap” arguments to overturn the convictions into the Second Appeal. “[T]he claims raised within the first and second assignments of error are a collateral attack upon this previously decided matter which is barred by res judicata.” 2007-Ohio-3524, ¶ 11. So too are Harrison‘s current attacks on his convictions in his application to reopen the Second Appeal. Any arguments in an application to reopen the Second Appeal would necessarily have to concern the resentencing.
{¶ 10} This court further notes that sufficiency of the evidence was raised in the First Appeal, and thus, res judicata directly bars that argument also. Finally, in State v. Reddick, 72 Ohio St.3d 88, 90-91, 1995-Ohio-249, 647 N.E.2d 784, the Supreme Court of Ohio stated: “Neither Murnahan nor
{¶ 11} Accordingly, this court denies the application to reopen.
PATRICIA A. BLACKMON, J., and MARY J. BOYLE, J., CONCUR.