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State v. Bishop

Court of Appeals of Ohio, Seventh District, Jefferson

November 21, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
JAMES K. BISHOP, Defendant-Appellant.

         Application for Reopening

         JUDGMENT: Application Denied.

          Atty. Jane M. Hanlin, Jefferson County Prosecutor for Plaintiff-Appellee.

          James K. Bishop, Pro se.

          BEFORE Cheryl L. Waite, Gene Donofrio, Carol Ann Robb, Judges.

          OPINION AND JUDGMENT ENTRY

          PER CURIAM.

         {¶1} Appellant James K. Bishop has filed an application to reopen his appeal pursuant to App.R. 26(B). In so doing, he asserts nine assignments of error raising various issues related to both his conviction and his sentence. For the reasons provided, Appellant's application to reopen his appeal is denied.

         Factual and Procedural History

         {¶2} On November 8, 2017, a grand jury indicted Appellant on: one count of theft, a felony of the fourth degree in violation of R.C. 2913.02(A)(1), (B)(2); one count of receiving stolen property, a felony of the fifth degree in violation of R.C. 2913.51(A), (C); one count of burglary, a felony of the second degree in violation of R.C. 2911.12(A)(1), (D); and one count of safecracking, a felony of the fourth degree in violation of R.C. 2911.31(A), (B).

         {¶3} The charges stemmed from an incident that occurred while Appellant was employed with a construction company that was completing a project at the victim's house. After Appellant left the victim's house, the victim learned that someone had pried open two of her locked jewelry boxes and removed the contents. After an investigation and Appellant's subsequent confession to his boss, he was eventually arrested.

         {¶4} A jury convicted Appellant on all charges following a one-day trial. However, the jury determined that the state did not prove the value of the jewelry exceeded $17, 000, so the theft conviction was reduced from a felony of the fourth degree to a felony of the fifth degree.

         {¶5} On January 18, 2018, the trial court sentenced Appellant to an aggregate total of nine and one-half years of incarceration.

         {¶6} We affirmed Appellant's convictions and sentence in State v. Bishop, 7th Dist. Jefferson No. 18 JE 0005, 2019-Ohio-2720 ("Bishop I "). This timely application to reopen his appeal followed.

         Reopening

         {¶7} Pursuant to App.R. 26(B)(1), a criminal defendant "may apply for reopening of the appeal from the judgment of conviction and sentence, based on a claim of ineffective assistance of appellate counsel." An applicant must demonstrate that "there is a genuine issue as to whether the applicant was deprived of the effective assistance of counsel on appeal." App.R. 26(B)(5). If the application is granted, the appellate court must appoint counsel to represent the applicant if the applicant is indigent and unrepresented. App.R. 26(B)(6)(a).

         {¶8} In order to show ineffective assistance of appellate counsel, the applicant must meet the two-prong test outlined in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Pursuant to Strickland, the applicant must first demonstrate deficient performance of counsel and then must demonstrate resulting prejudice. Id. at 687. See also App.R. 26(B)(9).

         Non-Conforming Brief

         {¶9} We note that while Appellant's merit brief falls within the applicable page limits, he has attached forty-seven additional pages of handwritten notes, and various proposed exhibits that also contain handwritten notes. As this additional material is clearly designed to further Appellant's arguments, it exceeds the page limit as described within App.R. 26(B)(4), none of this material will be considered by us. Additionally, Appellant has largely failed to provide this Court with any substantive arguments or legal citations. However, in the interest of fairness and justice, we will attempt to address his "arguments."

         ASSIGNMENT OF ERROR NO. 1

THE EVIDENCE IS INSUFFICIENT AS A MATTER OF LAW TO SUPPORT THE CONVICTION FOR THEFT, BURGLARY, RECEIVING STOLEN PROPERTY, AND SAFE CRACKING [SIC].

         ASSIGNMENT OF ERROR NO. 5

TRIAL COURT ERRED WHEN IT DENIED MOTION FOR RULE 29 FOR ACQUITAL [SIC] OF BURGLARY, THEFT AND ...

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