State v. Kinney , 2019 Ohio 2567 ( 2019 )

[Cite as State v. Kinney, 2019-Ohio-2567.]
COURT OF APPEALS OF
OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 106952
v. :
DARIUS KINNEY, :
Defendant-Appellant. :
________________________________________
JOURNAL ENTRY AND OPINION
JUDGMENT: APPLICATION DENIED
RELEASED AND JOURNALIZED: June 25, 2019
_______________________________________
Cuyahoga County Court of Common Pleas
Case No. CR-17-617832-A
Application for Reopening
Motion No. 527650
________________________________________
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and
Frank Romeo Zeleznikar, Assistant Prosecuting Attorney, for
appellee.
Darius Kinney, pro se.
FRANK D. CELEBREZZE, JR., J.:
{¶ 1} On April 17, 2019, the applicant, Darius Kinney, pursuant to App.R.
26(B), applied to reopen this court’s judgment in State v. Kinney, 8th Dist. Cuyahoga No.
106952, 2019-Ohio-629, in which this court affirmed his convictions and sentences for
tampering with evidence, failure to stop after an accident, and two counts of aggravated vehicular
homicide.1 Kinney now argues that his appellate counsel was ineffective for failing to file an
App.R. 26(A) motion for reconsideration or an App.R. 25 motion to certify conflict and for
failing to notify him timely of this court’s decision and his remedies. On May 3, 2019, the state
of Ohio filed a brief in opposition. For the following reasons, this court denies the application
to reopen, sua sponte.
{¶ 2} App.R. 26(B)(2)(c) provides that the basis of an application shall be “[o]ne
or more assignments of error or arguments in support of assignments of error that previously
were not considered on the merits in the case by any appellate court * * * because of appellate
counsel’s deficient representation.” Kinney’s arguments that his appellate counsel was
ineffective for failing to file a motion for reconsideration or a motion to certify a conflict and for
failing to timely notify him about this court’s decision or the above remedies are not authentic
assignments of error that can support an App.R. 26(B) application.
1
The record indicates that Kinney drove through an intersection killing two people; he did not stop. There
was a video recording of the incident. Shortly afterwards, the police received a tip that Kinney was the perpetrator.
Upon arriving at his house, the officers saw his motor vehicle partially covered by a blanket, but the vehicle showed
damage consistent with the video. Kinney eventually pleaded no contest and the judge sentenced him to four years
on each vehicular homicide count and two years each on the tampering and failure to stop counts, all consecutive.
On appeal, counsel argued that trial counsel was ineffective for failing to file a motion to suppress and that
the record did not support consecutive sentences. This court affirmed. After examining the Fourth Amendment
argument, this court ruled that “there was no Fourth Amendment violation by the investigating officers’ conduct in
viewing the damage to the SUV.” Kinney at ¶ 25.
{¶ 3} In State v. Montgomery, 8th Dist. Cuyahoga No. 102043, 2016-Ohio-378,
Montgomery complained about his appellate counsel’s conduct in appellate procedure: taking
two extensions of time, failing to review the record, failing to inform him about oral argument,
and delaying in notifying him of this court’s decision. These complaints are fully analogous to
filing motions for reconsideration and to certify a conflict. This court ruled that they are not
authentic assignments of error. “They do not address mistakes in the trial court that could be
rectified on appeal.” Montgomery at ¶ 3. The court further held that communications between
appellate counsel and the applicant cannot provide the basis of reopening. State v. Pratt, 8th
Dist. Cuyahoga No. 93123, 2010-Ohio-4998; State v. Marcum, 7th Dist. Columbiana No. 10 CO
17, 2012-Ohio-2721; State v. Woodson, 8th Dist. Cuyahoga No. 93476, 2010-Ohio-5230.
{¶ 4} Accordingly, this court denies the application to reopen.
__________________________________
FRANK D. CELEBREZZE, JR., JUDGE
EILEEN T. GALLAGHER, P.J., and
RAYMOND C. HEADEN, J., CONCUR