State v. Almashni , 2012 Ohio 349 ( 2012 )

[Cite as State v. Almashni, 2012-Ohio-349.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 92237
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
YASIN ALMASHNI
DEFENDANT-APPELLANT
JUDGMENT:
APPLICATION DENIED
Cuyahoga County Court of Common Pleas
Case No. CR-506300
Application for Reopening
Motion No. 450413
RELEASE DATE: February 1, 2012
FOR APPELLANT
Yasin Almashni
Inmate No. 563-991
Grafton Correctional Inst.
2500 S. Avon Belden Road
Grafton, OH 44044
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Debra A. Obed
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
EILEEN A. GALLAGHER, J.:
{¶ 1} Yasin Almashni has filed an application for reopening pursuant to App.R.
26(B). Almashni is attempting to reopen the appellate judgment in State v. Almashni,
8th District No. 92237, 2010-Ohio-898, 2010 WL 856212, which affirmed his conviction
and sentence for the offenses of felonious assault and aggravated menacing. We decline
to reopen Almashni’s appeal.
{¶ 2} App.R. 26(B)(2)(b) requires that Almashni establish “a showing of good
cause for untimely filing if the application is filed more than 90 days after journalization
of the appellate judgment,” which is subject to reopening. The Supreme Court of Ohio,
with regard to the 90-day deadline provided by App.R. 26(B)(2)(b), has firmly established
that:
“We now reject [the applicant’s] claim that those excuses gave him good cause to
miss the 90-day deadline in App.R. 26(B). The rule was amended to include the
90-day deadline more than seven months before [the applicant’s] appeal of right
was decided by the court of appeals in February 1994, so the rule was firmly
established then, just as it is today. Consistent enforcement of the rule’s
deadline by the appellate courts in Ohio protects on the one hand the state’s
legitimate interest in the finality of its judgments and ensures on the other
hand that any claims of ineffective assistance of appellate counsel are
promptly examined and resolved.
“Ohio and other states ‘may erect reasonable procedural requirements for
triggering the right to an adjudication,’ Logan v. Zimmerman Brush Co.
(1982), 455 U.S. 422, 437, 102 S.Ct 1148, 71 L.Ed 2d 265, and that is what
Ohio has done by creating a 90-day deadline for the filing of applications to
reopen. [The applicant] could have retained new attorneys after the court of
appeals issued its decision in 1994, or he could have filed the application on his
own. What he could not do was ignore the rule’s filing deadline. * * * The
90-day requirement in the rule is ‘applicable to all appellants,’ State v.
Winstead (1996), 74 Ohio St.3d 277, 278, 658 N.E.2d 722, and [the applicant]
offers no sound reason why he — unlike so many other Ohio criminal
defendants — could not comply with that fundamental aspect of the rule.”
(Emphasis added.) State v. Gumm, 103 Ohio St.3d 162, 2004-Ohio-4755, 814
N.E.2d 861, at ¶7. See, also, State v. LaMar, 102 Ohio St.3d 467,
2004-Ohio-3976, 812 N.E.2d 970; State v. Cooey, 73 Ohio St.3d 411,
1995-Ohio-328, 653 N.E.2d 252; State v. Reddick, 72 Ohio St.3d 88,
1995-Ohio-249, 647 N.E.2d 784.
{¶ 3} Herein, Almashni is attempting to reopen the appellate judgment that was
journalized on March 11, 2010. The application for reopening was not filed until
December 15, 2011, more than 90 days after journalization of the appellate judgment in
Almashni. In an attempt to establish “good cause” for the untimely filing of the
application for reopening, Almashni argues that “[g]ood cause exists in this case based
upon the language barrier the appellant suffers with understanding the english (sic)
language, in both written and oral form.” Almashni has failed to establish “a showing of
good cause” for the untimely filing of his application for reopening, because he has failed
to state how the language barrier prevented a timely filing of the application for
reopening. In addition, the fact that Almashni filed his application for reopening in a
totally literate form demonstrates that Almashni possesses a rudimentary understanding of
the English language and the ability to read and write in an intelligent and understanding
fashion. State v. Klein, 8th Dist. No. 58389, 1991 WL 41746 (Apr, 8, 1991), reopening
disallowed (Mar. 15, 1994), Motion No. 49260, aff’d, 69 Ohio St.3d 1481, 634 N.E.2d
1027; State v. Trammell, 8th Dist. No. 67834, 1995 WL 415171 (July 24, 1995),
reopening disallowed (Apr. 22, 1996), Motion No. 70493; State v. Travis 8th Dist. No.
56825, 1990 WL 40573 (Apr. 5, 1990), reopening disallowed (Nov. 2, 1994), Motion No.
51073, aff’d, 72 Ohio St.3d 317, 649 N.E.2d 1226 (1995). See, also, State v. Gaston, 8th
Dist. No. 79626, 2007 WL 117505 (Jan. 1, 2007) reopening disallowed (Jan. 17, 2007),
Motion No. 391555; State v. Torres, 8th Dist. No. 86530, 2006-Ohio-3696, 2006 WL
2023578, reopening disallowed 2007-Ohio-9, Motion No. 390254.
{¶ 4} Accordingly, the application for reopening is denied.
EILEEN A. GALLAGHER, JUDGE
PATRICIA ANN BLACKMON, A.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR