State v. Pruitt , 2012 Ohio 94 ( 2012 )

[Cite as State v. Pruitt, 2012-Ohio-94.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
Nos. 86707 and 86986
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
MICHAEL JARMAL PRUITT
DEFENDANT-APPELLANT
JUDGMENT:
APPLICATION DENIED
Cuyahoga County Common Pleas Court
Case No. CR-451979
Application for Reopening
Motion No. 449412
RELEASE DATE: January 11, 2012
FOR APPELLANT
Michael Jarmal Pruitt
Inmate No. 474-441
Allen Correctional Inst.
P.O. Box 4501
Lima, OH 45802-4501
ATTORNEYS FOR RESPONDENT
William D. Mason
Cuyahoga County Prosecutor
By: Mary McGrath
Assistant County Prosecutor
The Justice Center
1200 Ontario, 8th Floor
Cleveland, OH 44113
SEAN C. GALLAGHER, J.:
{¶ 1} In State v. Pruitt, Cuyahoga County Court of Common Pleas Case No.
CR-451979, applicant, Michael Jarmal Pruitt, pled guilty to and was convicted of attempted
murder and having weapons while under disability. This court affirmed that judgment in State
v. Pruitt, Cuyahoga App. Nos. 86707 and 86986, 2006-Ohio-4106. The Supreme Court of Ohio
did not accept Pruitt’s appeal for review. State v. Pruitt, 111 Ohio St.3d 1494,
2006-Ohio-6171, 857 N.E.2d 1231.
{¶ 2} Pruitt 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 his appellate
counsel did not assign as error on direct appeal two proposed assignments of error challenging
the propriety of his guilty plea. 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 Pruitt’s conviction was journalized on August 21,
2006. The application was filed on November 15, 2011, more than five years after
journalization of this court’s opinion and clearly in excess of the 90-day limit.
{¶ 5} Pruitt contends that his appellate counsel’s statement in a letter that counsel
“could find no issues to raise on appeal” and appellate “counsel’s failure to advise him of the
potential avenue for relief under App.R. 26(B)” constitute good cause for his delayed filing of the
application for reopening. Application, Appendix 3 (emphasis in original) and page 3,
respectively. It is well established, however, that reliance on counsel and asserting that
appellate counsel did not inform the appellant regarding filing an application for reopening under
App.R. 26(B) do not establish good cause for the untimely filing of an application for reopening.
E.g., State v. Bess, Cuyahoga App. No. 91560, 2009-Ohio-2032, reopening disallowed,
2011-Ohio-5490, ¶3-4. Likewise, in this case, Pruitt’s contention that he relied on appellate
counsel’s analysis of his case and that appellate counsel did not inform him of the possibility of
filing an application for reopening do not demonstrate good cause for the delay in filing this
application.
{¶ 6} 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). E.g., State v. Gumm, 103 Ohio St.3d
162, 2004-Ohio-4755, 814 N.E.2d 861, and State v. LaMar, 102 Ohio St.3d 467,
2004-Ohio-3976, 812 N.E.2d 970. Pruitt’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, and
State v. Garcia (July 8, 1999), Cuyahoga App. No. 74427, reopening disallowed
2005-Ohio-5796, Motion No. 370916.
{¶ 7} As a consequence, Pruitt has not met the standard for reopening. Accordingly,
the application for reopening is denied.
SEAN C. GALLAGHER, JUDGE
MELODY J. STEWART, P.J., AND
EILEEN A. GALLAGHER, J., CONCUR