State v. DePew
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OPINIONS OF THE SUPREME COURT OF OHIO 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. DePew, Appellant. [Cite as State v. DePew (1994), Ohio St.3d .] Motions for delayed reinstatement of appeal and for delayed reconsideration denied. (No. 87-1334 -- Submitted August 17, 1994 -- Decided November 9, 1994.) On Motions for Delayed Reinstatement of Appeal and for Delayed Reconsideration. Appellant, Rhett G. DePew, was convicted of three aggravated murders and sentenced to death. On direct appeal as of right, the court of appeals affirmed the conviction and sentence. State v. DePew (June 29, 1987), Butler App. No. CA85-07-075, unreported, 1987 WL 13709. We also affirmed when he appealed to this court. State v. DePew (1988), 38 Ohio St.3d 275, 528 N.E.2d 542, certiorari denied (1989), 489 U.S. 1042, 109 S.Ct. 1099, 103 L.Ed.2d 241. DePew then petitioned the trial court for postconviction relief under R.C. 2953.21; that petition was dismissed, and the court of appeals affirmed the dismissal. State v. DePew (Aug. 10, 1992), Butler App. No CA90-09-187, unreported, 1992 WL 193691, jurisdictional motion overruled (1992), 65 Ohio St.3d 1475, 604 N.E.2d 167. Next, DePew filed a motion for delayed reinstatement of his appeal as of right in this court. Next, DePew filed a motion for delayed reconsideration of his direct appeal in the court of appeals, pursuant to App.R. 26(B), claiming that he had been denied effective assistance of counsel when that court first considered his case in 1987. (See State v. Murnahan [1992], 63 Ohio St.3d 60, 584 N.E.2d 1204.) The court of appeals granted that motion in part, State v. DePew (Sept. 7, 1993), Butler App. No. CA85-07-075, unreported, and on reconsideration reaffirmed its original decision, State v. DePew (May 9, 1994), Butler App. No. CA85-070-75, unreported, 1994 WL 178405. DePew appealed that judgment and we affirmed. State v. DePew (1994), 70 Ohio St.3d 1435, N.E.2d . DePew now separately claims that he lacked effective assistance of counsel in his 1988 direct appeal to this court, and therefore asks us to reconsider his direct appeal under S.Ct.Prac. R. XI(1)(B). John F. Holcomb, Butler County Prosecuting Attorney, and Daniel G. Eichel, Assistant Prosecuting Attorney, for appellee. David H. Bodiker, Ohio Public Defender, Jane P. Perry and Richard J. Vickers, Assistant Public Defenders, for appellant. Per Curiam. We deny the motions. DePew's 1988 appeal to this court was not a first appeal as of right; therefore, he had no constitutional right to counsel, hence no constitutional right to effective assistance. See State v. Buell (1994), 70 Ohio St.3d 1211, 639 N.E.2d 110. Motions denied. Moyer, C.J., A.W. Sweeney, Douglas, Resnick, F.E. Sweeney and Pfeifer, JJ., concur. Wright, J., dissents.
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