State v. Malin
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OPINIONS OF THE SUPREME COURT OF OHIO **** SUBJECT TO FURTHER EDITING **** The full texts of the opinions of the Supreme Court of Ohio are being transmitted electronically beginning May 27, 1992, pursuant to a pilot project implemented by Chief Justice Thomas J. Moyer. Please call any errors to the attention of the Reporter's Office of the Supreme Court of Ohio. Attention: Walter S. Kobalka, Reporter, or Deborah J. Barrett, Administrative Assistant. Tel.: (614) 466-4961; in Ohio 1-800-826-9010. Your comments on this pilot project are also welcome. NOTE: Corrections may be made by the Supreme Court to the full texts of the opinions after they have been released electronically to the public. The reader is therefore advised to check the bound volumes of Ohio St.3d published by West Publishing Company for the final versions of these opinions. The advance sheets to Ohio St.3d will also contain the volume and page numbers where the opinions will be found in the bound volumes of the Ohio Official Reports. The State of Ohio, Appellee, v. Malin, Appellant. [Cite as State v. Malin (1994), Ohio St.3d .] Appellate procedure -- App.R. 26(B) -- Application for reopening appeal from judgment and conviction based on claim of ineffective assistance of appellate counsel -Application denied when not timely filed. (No. 94-1755 -- Submitted October 24, 1994 -- Decided Decembetr 21, 1994.) Appeal from the Court of Appeals for Cuyahoga County, No. 37389. It is undisputed that appellant, Chester W. Malin, was convicted of aggravated murder in 1976 and sentenced to life imprisonment. He appealed, and the court of appeals affirmed the conviction. State v. Malin (Dec. 28, 1978), Cuyahoga App. No. 37389, unreported. Appellant's motion for leave to appeal to this court was overruled. State v. Malin (May 10, 1979), case No. 79-301. The Supreme Court of the United States denied certiorari. Malin v. Ohio (1979), 444 U.S. 936, 100 S.Ct. 284, 62 L.Ed.2d 195. Appellant applied to the court of appeals to reopen the appeal from the judgment of conviction pursuant to App. R. 26(B), alleging ineffective assistance of appellate counsel because his appellate counsel failed to assert an abuse of discretion by the trial court by not admitting a polygraph examination. The court of appeals denied the application on the basis that the application was not timely filed, and appellant had not shown good cause for the delay, and that the issue was res judicata. Appellant appeals the denial to this court. Stephanie Tubbs Jones, Cuyahoga County Prosecuting Attorney, and Elaine Welsh, Assistant Prosecuting Attorney, for appellee. Chester W. Malin, pro se. Per Curiam. The decision of the court of appeals is affirmed for the reasons stated therein. Judgment affirmed. Moyer, C.J., A.W. Sweeney, Douglas, Wright, Resnick, F.E. Sweeney and Pfeifer, JJ., concur.
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