State v. Buell

Ohio Supreme Court

State v. Buell

639 N.E.2d 110, 70 Ohio St. 3d 1211

Ohio Supreme Court·Decided September 28, 1994·No. No. 85-712·Published·Cited by 34 cases

Opinion

[1212]*1212Appellant, Robert Buell, was convicted of aggravated murder and sentenced to death in 1984. On direct appeal as of right, the court of appeals affirmed the conviction and sentence. State v. Buell (Apr. 11, 1985), Cuyahoga App. No. 48621, unreported, 1985 WL 7955. Buell then appealed as of right to this court, and we also affirmed. State v. Buell (1986), 22 Ohio St.3d 124, 22 OBR 203, 489 N.E.2d 795, certiorari denied (1986), 479 U.S. 870, 107 S.Ct. 240, 93 L.Ed.2d 165. Buell then petitioned the trial court for collateral postconviction relief; that petition was denied, and the court of appeals affirmed the denial. State v. Buell (Aug. 22,1991), Cuyahoga App. No. 57197, unreported. We denied review of that judgment on January 29, 1992. State v. Buell (1992), 62 Ohio St.3d 1508, 583 N.E.2d 1320. Next, Buell filed a motion for delayed reconsideration of his direct appeal in the court of appeals, pursuant to App.R. 26 and 14(B), claiming that he had been denied effective assistance of counsel when the court of appeals first considered his case in 1985. (See State v. Murnahan [1992], 63 Ohio St.3d 60, 584 N.E.2d 1204.) The court of appeals denied reconsideration, State v. Buell (Sept. 21, 1992), Cuyahoga App. No. 31875, unreported, and we affirmed that judgment on November 17, 1993. State v. Buell (1993), 67 Ohio St.3d 1500, 622 N.E.2d 649. Buell now claims that he did not receive the effective assistance of counsel in his 1986 direct appeal to this court, and for that reason asks us to reinstate his direct appeal pursuant to S.Ct.Prac.R. XI, Section 1(B).

We deny the motion. Buell’s 1986 appeal to this court was his second appeal. “[T]he right to appointed counsel extends to the first appeal as of right, and no further.” (Emphasis added.) Pennsylvania v. Finley (1987), 481 U.S. 551, 555, 107 S.Ct. 1990, 1993, 95 L.Ed.2d 539, 545. See, also, Evitts v. Lucey (1985), 469 U.S. 387, 394, 105 S.Ct. 830, 834-835, 83 L.Ed.2d 821, 828. Having no constitutional right to counsel on a second appeal, Buell had no constitutional right to the effective assistance of counsel. See Wainwright v. Torna (1982), 455 U.S. 586, 587-588, 102 S.Ct. 1300, 1301, 71 L.Ed.2d 475, 477-478; Evitts, supra, 469 U.S. at 397, 105 S.Ct. at 836, 83 L.Ed.2d at 830, fn. 7.

Motion denied.

Moyer, C.J., A.W. Sweeney, Douglas, Resnick, F.E. Sweeney and Pfeifer, JJ., concur. Wright, J., concurs in judgment only.

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[1212]*1212Appellant, Robert Buell, was convicted of aggravated murder and sentenced to death in 1984. On direct appeal as of right, the court of appeals affirmed the conviction and sentence. State v. Buell (Apr. 11, 1985), Cuyahoga App. No. 48621, unreported, 1985 WL 7955. Buell then appealed as of right to this court, and we also affirmed. State v. Buell (1986), 22 Ohio St.3d 124, 22 OBR 203, 489 N.E.2d 795, certiorari denied (1986), 479 U.S. 870, 107 S.Ct. 240, 93 L.Ed.2d 165. Buell then petitioned the trial court for collateral postconviction relief; that petition was denied, and the court of appeals affirmed the denial. State v. Buell (Aug. 22,1991), Cuyahoga App. No. 57197, unreported. We denied review of that judgment on January 29, 1992. State v. Buell (1992), 62 Ohio St.3d 1508, 583 N.E.2d 1320. Next, Buell filed a motion for delayed reconsideration of his direct appeal in the court of appeals, pursuant to App.R. 26 and 14(B), claiming that he had been denied effective assistance of counsel when the court of appeals first considered his case in 1985. (See State v. Murnahan [1992], 63 Ohio St.3d 60, 584 N.E.2d 1204.) The court of appeals denied reconsideration, State v. Buell (Sept. 21, 1992), Cuyahoga App. No. 31875, unreported, and we affirmed that judgment on November 17, 1993. State v. Buell (1993), 67 Ohio St.3d 1500, 622 N.E.2d 649. Buell now claims that he did not receive the effective assistance of counsel in his 1986 direct appeal to this court, and for that reason asks us to reinstate his direct appeal pursuant to S.Ct.Prac.R. XI, Section 1(B).

We deny the motion. Buell’s 1986 appeal to this court was his second appeal. “[T]he right to appointed counsel extends to the first appeal as of right, and no further.” (Emphasis added.) Pennsylvania v. Finley (1987), 481 U.S. 551, 555, 107 S.Ct. 1990, 1993, 95 L.Ed.2d 539, 545. See, also, Evitts v. Lucey (1985), 469 U.S. 387, 394, 105 S.Ct. 830, 834-835, 83 L.Ed.2d 821, 828. Having no constitutional right to counsel on a second appeal, Buell had no constitutional right to the effective assistance of counsel. See Wainwright v. Torna (1982), 455 U.S. 586, 587-588, 102 S.Ct. 1300, 1301, 71 L.Ed.2d 475, 477-478; Evitts, supra, 469 U.S. at 397, 105 S.Ct. at 836, 83 L.Ed.2d at 830, fn. 7.

Motion denied.

Moyer, C.J., A.W. Sweeney, Douglas, Resnick, F.E. Sweeney and Pfeifer, JJ., concur. Wright, J., concurs in judgment only.

State v. Buell, 639 N.E.2d 110, 70 Ohio St. 3d 1211 (Ohio 1994).

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