State v. Thomas ( 2011 )

[Cite as State v. Thomas, 2011-Ohio-6070.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 94042
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DAVID T. THOMAS
DEFENDANT-APPELLANT
JUDGMENT:
APPLICATION DENIED
Cuyahoga County Common Pleas Court
Case No.CR-520343
Application for Reopening
Motion No. 448626
RELEASE DATE: November 21, 2011
FOR APPELLANT
David T. Thomas, pro se
Inmate No. 573-140
Mansfield Correctional Inst.
P. O. Box 788
Mansfield, OH 44901
ATTORNEYS FOR RESPONDENT
William D. Mason
Cuyahoga County Prosecutor
By: Brian R. Radigan
Justice Center, 8th Fl.
1200 Ontario Street
Cleveland, OH 44113
EILEEN A. GALLAGHER, J.:
{¶ 1} In State v. Thomas, Cuyahoga County Court of Common Pleas Case No.
CR-520343, applicant was convicted of reckless homicide, tampering with evidence, and
having a weapon while under disability. This court affirmed that judgment in State v.
Thomas, Cuyahoga App. No. 94042, 2010-Ohio-5237. The Supreme Court of Ohio denied
applicant’s motion for leave to appeal and dismissed the appeal as not involving any
substantial constitutional question. State v. Thomas, ___ Ohio St.3d ___, Case
Announcements, 2011-Ohio-647.
{¶ 2} Applicant, David T. Thomas, has filed with the clerk of this court an application
for reopening. He asserts that he was denied the effective assistance of appellate counsel
because counsel did not assign as error that he was convicted of allied offenses of similar
import. We deny the application for reopening. As required by App.R. 26(B)(6), the
reasons for our denial follow.
{¶ 3} Initially, we note that App.R. 26(B)(1) provides, in part: “An application for
reopening shall be filed * * * within ninety days from journalization of the appellate judgment
unless the applicant shows good cause for filing at a later time.” App.R. 26(B)(2)(b) requires
that an application for reopening include “a showing of good cause for untimely filing if the
application is filed more than ninety days after journalization of the appellate judgment.”
{¶ 4} This court’s decision affirming Thomas’s conviction was journalized on
October 28, 2010. The application was filed on October 18, 2011, clearly in excess of the
90-day limit.
{¶ 5} Thomas argues, however, that he has good cause for the delay. He observes
that he filed a timely appeal to the Supreme Court of Ohio of this court’s judgment affirming
his conviction. “* * * Appellant believes that he would not have been able to bring his
appeal to the Supreme Court for purposes of Delayed appeal if he choose [sic] to first, file his
reopening to this Court. Appellant further submits, that although this Court perhaps, would
have had original jurisdiction, however, S. Ct. Prac. Rules would foreclose the 90 day limit set
forth in App.R. 26(B), and therefore, establishes the ‘good cause’ as ‘a legally sufficient
reason’ pursuant to App.R. 26(B)(2)(b).” Application, at 1-2 (capitalization in original).
{¶ 6} In State v. Keith, 119 Ohio St.3d 161, 2008-Ohio-3866, 892 N.E.2d 912, the
supreme court affirmed the denial of Keith’s application for reopening as untimely and
observed: “(The court of appeals retained jurisdiction to consider Keith’s App.R. 26(B)
application, even though he had appealed to this court. See S.Ct.Prac.R. II(2)(D)(1),
effective April 1, 1996. Thus, the pendency of Keith’s appeal to this court did not toll the
time for filing his application in the court of appeals.)” Id. ¶5 (parentheses in original)
[S.Ct.Prac.R. II(2)(D)(1) is now S.Ct. Prac. R. 2.2(D)(1)].
{¶ 7} Likewise, in this case, the 90-day limit for filing an application for reopening
applied to Thomas even though he had filed a timely appeal to the supreme court. As a
consequence, he has not established good cause for the untimely filing of his application for
reopening.
{¶ 8} The Supreme Court has upheld judgments denying applications for reopening
solely on the basis that the application was not timely filed and the applicant failed to show
“good cause for filing at a later time.” App.R. 26(B)(1). See, e.g., State v. Gumm, 103
Ohio St.3d 162, 2004-Ohio-4755, 814 N.E.2d 861; State v. LaMar, 102 Ohio St.3d 467,
2004-Ohio-3976, 812 N.E.2d 970. An applicant’s failure to demonstrate good cause is a
sufficient basis for denying the application for reopening. See, also, State v. Collier (June 11,
1987), Cuyahoga App. No. 51993, reopening disallowed 2005-Ohio-5797, Motion No.
370333; State v. Garcia (July 8, 1999), Cuyahoga App. No. 74427, reopening disallowed
2005-Ohio-5796, Motion No. 370916.
{¶ 9} We also note that the application for reopening is not supported by a sworn
statement of the basis of the claim for ineffective assistance of appellate counsel as required by
App.R. 26(B)(2)(d). “In State v. Lechner, 72 Ohio St.3d 374, 1995-Ohio-25, 650 N.E.2d
449, the Ohio Supreme Court affirmed the denial of Lechner’s application solely on the basis
of his failure to comply with App.R. 26(B)(2)(d). The Ohio Supreme Court ruled that the
inclusion of the sworn statement is mandatory. Thus, its omission is sufficient reason to deny
the application.” State v. Fortson, Cuyahoga App. No. 92337, 2010-Ohio-2337, reopening
disallowed, 2011-Ohio-698, ¶2. Likewise, the failure of Thomas to support his application
with a sworn statement provides an additional ground for denying the application for
reopening.
{¶ 10} As a consequence, applicant has not met the standard for reopening.
Accordingly, the application for reopening is denied.
EILEEN A. GALLAGHER, JUDGE.,
MARY EILEEN KILBANE, A.J., and
KENNETH A. ROCCO, J., CONCUR