State v. Moore

Summary

The Supreme Court of Ohio affirmed the denial of Lee E. Moore Jr.'s application to reopen his direct appeal under Ohio Appellate Rule 26(B). The court held that Moore failed to raise a genuine issue demonstrating ineffective assistance of appellate counsel, and addressed his claims concerning untimeliness, judicial recusal, evidentiary proceedings, and appointment of counsel.

Holdings

1. An applicant seeking to reopen an appeal under App.R. 26(B)(5) must raise a genuine issue showing a colorable claim that appellate counsel was ineffective, measured under the two-pronged Strickland standard. Moore failed to do so, so reopening was properly denied.
2. A party alleging bias by a court of appeals judge must seek relief by filing an affidavit of disqualification with the Supreme Court of Ohio; failure to do so forecloses the recusal complaint in the appeal.
3. A reviewing court may not add material to the record that was not before the lower court and decide the appeal on the basis of that new material; ineffective assistance of appellate counsel likewise cannot be assessed by adding new matter to the record.
4. Moore's request for appointment of counsel was moot because counsel had represented him in the court of appeals during the App.R. 26(B) proceeding.

Questions Presented

1. Whether Moore raised a genuine issue as to deprivation of the effective assistance of appellate counsel sufficient to reopen his direct appeal under App.R. 26(B)(5).
2. Whether Moore could challenge the appellate judges' failure to recuse themselves without filing an affidavit of disqualification under R.C. 2501.13 and Article IV, Section 5(C) of the Ohio Constitution.
3. Whether the court of appeals could consider new evidence or matters outside the existing record in evaluating the App.R. 26(B) application.
4. Whether Moore was entitled to appointment of counsel in the App.R. 26(B) proceeding.
5. Whether Moore established good cause for filing his App.R. 26(B) application more than ninety days after journalization of the appellate judgment.

Disposition

affirmed