State v. Hurt ( 2014 )

[Cite as State v. Hurt, 2014-Ohio-2636.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96032
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
WILLIE HURT
DEFENDANT-APPELLANT
JUDGMENT:
APPLICATION DENIED
Cuyahoga County Court of Common Pleas
Case No. CR-514257
Application for Reopening
Motion No. 474601
RELEASE DATE: June 18, 2014
-i-
FOR APPELLANT
Willie Hurt
Inmate #563-360
Lorain Correctional Institution
2075 South Avon-Belden Road
Grafton, OH 44044
ATTORNEYS FOR APPELLEE
Willliam D. Mason
Cuyahoga County Prosecutor
By: Diane Smilanick
Assistant County Prosecutor
Justice Center - 8th Floor
1200 Ontario Street
Cleveland, OH 44113
KENNETH A. ROCCO, J.:
{¶1} On May 7, 2014, the applicant, Willie Hurt, 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. Hurt, 8th Dist. Cuyahoga No. 96032, Entry Nos. 439452 and
439502 (Nov. 22, 2010), in which this court denied Hurt’s pro se November 17, 2010
motion for leave to file notice of appeal out of rule.1 Hurt alleges that his appellate
counsel should have argued the invalidity of the indictment and ineffective assistance of
trial counsel. For the following reasons, this court denies the application.
{¶2} 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. Hurt filed the
instant application approximately three-and-a-half years after this court’s denial of this
motion for a delayed appeal. Thus, it is untimely on its face, and Hurt proffers no good
cause for his untimely filing.
{¶3} Moreover, in State v. Hurt, 8th Dist. Cuyahoga No. 96032, 2012-Ohio-4268,
Hurt previously filed an App.R. 26(B) application to reopen. This court denied the
application as untimely. It also ruled that because Hurt had represented himself in filing
the motion for delayed appeal, he could not maintain a claim for ineffective assistance of
appellate counsel. Again, Hurt, pro se, has filed an untimely application, which is
1
In State v. Hurt, Cuyahoga C.P. No. CR-514257, Hurt pleaded guilty to one count each of
rape and gross sexual imposition. On March 19, 2009, the trial court sentenced him to 18 years
imprisonment.
stillborn. Additionally, the Supreme Court of Ohio has ruled that App.R. 26(B) does not
permit successive applications. State v. Slagle, 97 Ohio St.3d 332, 2002-Ohio-6612, 779
N.E.2d 1041.
{¶4} Accordingly, this court denies the application.
________________________________________
KENNETH A. ROCCO, JUDGE
PATRICIA ANN BLACKMON, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR