State v. Black ( 2020 )

[Cite as State v. Black, 2020-Ohio-3278.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 108001
v. :
RAYSHON L. BLACK, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: APPLICATION DENIED
RELEASED AND JOURNALIZED: June 10, 2020
Cuyahoga County Court of Common Pleas
Case Nos. CR-17-613986-B, CR-17-614959-A, and CR-17-618389-A
Application for Reopening
Motion No. 536711
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney and Anthony T. Miranda, Assistant Prosecuting
Attorney, for appellee.
Rayshon L. Black, pro se.
MICHELLE J. SHEEHAN, J.:
On March 6, 2020, the applicant, Rayshon L. Black, pursuant to
App.R. 26(B) and State v. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204 (1992),
applied to reopen this court’s judgment in State v. Black, 8th Dist. Cuyahoga No.
108001, 2019-Ohio-4977, in which this court affirmed his convictions for rape and
kidnapping of his stepdaughter. Black now asserts that his appellate counsel should
have argued the following: (1) the prosecution engaged in misconduct by making
inaccurate statements and asking leading questions that deprived Black of a fair
trial, (2) there was insufficient evidence to support a conviction, and (3) the
convictions were against the manifest weight of the evidence because the verdicts
were inconsistent.1 On March 23, 2020, Black filed a memorandum to show good
cause for an untimely filing. The state filed its brief in opposition on March 25,
2020. For the following reasons, this court denies the application to reopen.
App.R. 26(B)(1) and (2)(b) require applications claiming ineffective
assistance of appellate counsel to be filed within 90 days from journalization of the
decision unless the applicant shows good cause for filing at a later time. This court
issued its decision on December 5, 2019. Accordingly, Black’s application was due
no later than March 4, 2020.2 Thus, his March 6, 2020 application is untimely on
its face.
In an effort to show good cause, Black explains that he placed the
application into the prison’s outgoing mail on the 80th day of the limitations period,
which would have been February 23, 2020. The prison staff notarized his required
affidavits on February 25, and processed the cash slip on February 28, but did not
1The grand jury also had indicted Black for gross sexual imposition, but the jury
found him not guilty of that charge.
2 Twenty-six (remaining days in December) + 31 (January) + 29 (February) + 4 =
90.
actually place the envelope into the outgoing mail until Monday, March 2, 2020.
Thus, Black argues that the prison delays, not his lack of diligence, caused the
untimely filing.
However, the courts have ruled that delays in the mail do not
constitute good cause for untimely filing. In State v. Winstead, 74 Ohio St.3d 277,
1996-Ohio-52, 658 N.E.2d 722, the Supreme Court of Ohio held that a courier’s
delay in delivery is not good cause for accepting an untimely App.R. 26(B)
application to reopen. This court has also rejected inactions of the prison mail
system as good cause for untimely filing. State v. Campbell, 8th Dist. Cuyahoga No.
105488, 2018-Ohio-3494, and State v. Nitsche, 8th Dist. Cuyahoga No. 103174,
2017-Ohio-529. Similarly, miscalculation of the time necessary to file the
application timely does not state good cause. State v. Johnson, 8th Dist. Cuyahoga
No. 105612, 2018-Ohio-5151 and State v. Agosto, 8th Dist. Cuyahoga No. 87283,
2007-Ohio-848. In the latter two cases, the applications were filed only one day
late.
The court further rules that because the due date of Black’s
application was March 4, 2020, the tolling provisions of Am.Sub.H.B. No. 197 and
the Supreme Court of Ohio’s Administrative Actions order of March 27, 2020, do
not apply. Those provisions are effective March 9, 2020, after the due date of Black’s
application.
Moreover, after reviewing the application, the court concludes that
Black’s assignments of error do not present a genuine issue as to whether he was
deprived of the effective assistance of appellate counsel.
Accordingly, this court denies the application to reopen.
MICHELLE J. SHEEHAN, JUDGE
SEAN C. GALLAGHER, P.J., and
RAYMOND C. HEADEN, J., CONCUR