State v. Mathis , 2015 Ohio 295 ( 2015 )

[Cite as State v. Mathis, 2015-Ohio-295.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 91830
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
PRESTON MATHIS
DEFENDANT-APPELLANT
JUDGMENT:
APPLICATION DENIED
Cuyahoga County Court of Common Pleas
Case No. CR-08-507908
Application for Reopening
Motion No. 479639
RELEASE DATE: January 28, 2015
APPELLANT
Preston Mathis, pro se
#551-527
Lorain Correctional Institution
2075 South Avon Belden Road
Grafton, Ohio 44044
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
Brett Hammond
Assistant County Prosecutor
The Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.:
{¶1} Preston Mathis has filed an application for reopening pursuant to App.R. 26(B).
Mathis is attempting to reopen the appellate judgment rendered in State v. Mathis, 8th Dist.
Cuyahoga No. 91830, 2009-Ohio-3289, that affirmed his conviction and sentence for the
offenses of murder and having weapons while under disability. We decline to reopen Mathis’s
appeal.
{¶2} App.R. 26(B)(2)(b) requires that Mathis establish “a showing of good cause for
untimely filing if the application is filed more than 90 days after journalization of the appellate
judgment” that 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 established that
[w]e now reject [the applicant’s] claims that those excuses gave good cause to
miss the 90-day deadline in App.R. 26(B). * * * 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 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, ¶ 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, 653 N.E.2d 252 (1995); State v. Reddick, 72 Ohio St.3d 88, 647 N.E.2d 784(1995).
{¶3} Herein, Mathis is attempting to reopen the appellate judgment that was
journalized on July 2, 2009. The application for reopening was not filed until October 24, 2014,
more than 90 days after journalization of the appellate judgment in Mathis, supra. In an attempt
to establish good cause for the untimely filing of his application for reopening, Mathis argues that
[b]eing unfamiliarized by experience, study, or practice of the law; during and
following the previous appeal procedures conducted by appellate counsel,
Appellant had not faculty of mind from which he could have possibly deduced
knowledge of his counsel’s deficient presentation of such an inadequate and
ineffective appeal. In the absence of being informed of his rights pertaining to
the issues he is now presenting to this Honorable Court for review, it is his
impervious assertion that these issues are such as could not in the exercise of his
due diligence have been discovered and presented before now.
{¶4} Mathis has failed to establish a showing of good cause for the untimely filing of
his application for reopening. Lack of legal training and ignorance of the law does not establish
good cause for failure to seek timely relief pursuant to App.R. 26(B). Reddick. See also State
v. Klein, 8th Dist. Cuyahoga No. 58389, 1991 Ohio App. LEXIS 1346 (Mar. 28, 1991),
reopening disallowed (Mar. 15, 1994), Motion No. 249260, aff’d, 69 Ohio St.3d 1481, 634
N.E.2d 1027 (1994); State v. Trammell, 8th Dist. Cuyahoga No. 67834, 1995 Ohio App. LEXIS
2962 (July 13, 1995), reopening disallowed (Apr. 22, 1996), Motion No. 270493; State v.
Travis, 8th Dist. Cuyahoga No. 56825, 1990 Ohio App. LEXIS 1356 (Apr. 5, 1990), reopening
disallowed (Nov. 2, 1994), Motion No. 251073, aff’d, 72 Ohio St.3d 317, 649 N.E.2d 1226(1995); State v. Gaston, 8th Dist. Cuyahoga No. 79626, 2007-Ohio-155; State v. Torres, 8th Dist.
Cuyahoga No. 86530, 2007-Ohio-9.
{¶5} In addition, limited access to the prison library and legal materials have been
repeatedly rejected as good cause for the untimely filing of an App.R. 26(B) application for
reopening. State v. Kinder, 8th Dist. Cuyahoga No. 94722, 2012-Ohio-1339. Finally, reliance
on one’s attorney does not provide good cause for the untimely filing of an application for
reopening. In State v. Pruitt, 8th Dist. Cuyahoga Nos. 86707 and 86986, 2012-Ohio-94, and
State v. Alt, 8th Dist. Cuyahoga No. 96289, 2012-Ohio-2054, this court held that appellate
counsel’s failure to inform the defendant as to the availability of App.R. 26(B) did not establish
good cause for filing an untimely application for reopening.
{¶6} Accordingly, the application for reopening is denied.
MARY EILEEN KILBANE, JUDGE
FRANK D. CELEBREZZE, JR., A.J., and
KATHLEEN ANN KEOUGH, J., CONCUR