State v. Koreisl ( 2011 )

[Cite as State v. Koreisl, 2011-Ohio-6438.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 90950
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
MARK KOREISL
DEFENDANT-APPELLANT
JUDGMENT:
APPLICATION DENIED
Cuyahoga County Common Pleas Court
Case No. CR-502332
Application for Re-opening
Motion Nos. 449097 and 450082
RELEASE DATE: December 13, 2011
FOR APPELLANT
Mark Koreisl, pro se
Inmate No.: A542166
Trumbull County Correctional Inst.
5701 Burnett
Leavittsburg, OH 44430
ATTORNEYS FOR RESPONDENT
William D. Mason
Cuyahoga County Prosecutor
By: Pinkey S. Carr
Asst. County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
MARY EILEEN KILBANE, J.:
{¶ 1} Mark Koreisl has filed an application for reopening pursuant to
App.R. 26(B). Koreisl is attempting to reopen the appellate judgment, as
rendered in State v. Koreisl, Cuyahoga App. No. 90950, 2009-Ohio-1238, which
affirmed his conviction and sentence for the offenses of rape, gross sexual
imposition, and importuning. We decline to reopen Koreisl’s appeal.
{¶ 2} App.R. 26(B)(2)(b) requires that Koreisl 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 as provided by App.R.
26(B)(2)(b), has firmly established that:
{¶ 3} “We now reject [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 [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.
{¶ 4} “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. [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 Gumm 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.
{¶ 5} 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.
{¶ 6} Herein, Koreisl is attempting to reopen the appellate judgment that
was journalized on March 19, 2009. The application for reopening was not filed
until November 3, 2011, more than 90 days after journalization of the appellate
judgement in State v. Koreisl, supra. In an attempt to establish “good cause” for
the untimely filing of his application for reopening, Koreisl argues that he relied
upon appellate counsel and was unable to obtain his appellate file. Koreisl,
however, has failed to raise or establish “good cause” for the untimely filing of his
application for reopening.
{¶ 7} “Good cause” does not include reliance upon appellate counsel,
difficulty in obtaining a transcript, and limited access to legal materials. State v.
Hudson, Cuyahoga App. No. 91803, 2009-Ohio-6454, reopening disallowed,
2010-Ohio-2979, Motion No. 434149. In addition, lack of knowledge or
ignorance of the time constraint, applicable to an application for reopening per
App.R. 26(B), does not provide sufficient cause for untimely filing. State v. Klein
(Mar. 28, 1991), Cuyahoga App. No. 58389, reopening disallowed (Mar. 15,
1994), Motion No. 249260, affirmed (1994), 69 Ohio St. 3d 1481; State v.
Trammell (July 13, 1995), Cuyahoga App. No. 67834, reopening disallowed
(Apr. 22, 1996), Motion No. 270493; State v. Travis (Apr. 5, 1990), Cuyahoga
App. No. 56825, reopening disallowed (Nov. 2, 1994), Motion No. 251073,
affirmed (1995), 72 Ohio St. 3d 317. See, also, State v. Torres, Cuyahoga App.
No. 86530, 2006-Ohio-3696, reopening disallowed, 2007-Ohio-9, Motion No,
390254; State v. Gaston (Feb. 7. 2002), Cuyahoga App. No. 79626, reopening
disallowed (Jan 17,2007), Motion No. 391555.
{¶ 8} The failure to establish “good cause” mandates that this court deny
the application for reopening. State v. White (Jan. 31, 1991), Cuyahoga App.
No. 57944, reopening disallowed (Oct. 19, 1994), Motion No. 249174; State v.
Allen (Nov. 3, 1994), Cuyahoga App. No. 65806, reopening disallowed (July 8,
1996), Motion No. 267054. See, also, State v. Moss (May 13, 1993), Cuyahoga
App. Nos. 62318 and 62322, reopening disallowed (Jan. 16, 1997), Motion No.
275838; State v. McClain (Aug. 3, 1995), Cuyahoga App. No. 67785, reopening
disallowed (Apr. 15, 1997), Motion No. 276811; State v. Russell (May 9, 1996),
Cuyahoga App. No. 69311, reopening disallowed (June 16, 1997), Motion No.
282351.
{¶ 9} Accordingly, Koreisl’s application for reopening is denied.
MARY EILEEN KILBANE, PRESIDING JUDGE
LARRY A. JONES, J., and
EILEEN A. GALLAGHER, J., CONCUR