State v. Alt , 2012 Ohio 2054 ( 2012 )

[Cite as State v. Alt, 2012-Ohio-2054.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96289
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
SUSAN ALT
DEFENDANT-APPELLANT
JUDGMENT:
APPLICATION DENIED
Cuyahoga County Common Pleas Court
Case No. CR-527674
Application for Reopening
Motion No. 453869
RELEASE DATE: May 9, 2012
2
ATTORNEY FOR APPELLANT
Gregory Scott Robey, Esq.
Robey & Robey
14402 Granger Road
Cleveland, Ohio 44137
ATTORNEYS FOR APPELLEE
William D. Mason, Esq.
Cuyahoga County Prosecutor
By: Mary McGrath, Esq.
Assistant Prosecuting Attorney
1200 Ontario Street
Cleveland, Ohio 44113
3
KATHLEEN ANN KEOUGH, J.:
In State v. Alt, Cuyahoga County Court of Common Pleas Case No. CR-527674,
applicant, Susan Alt, pled guilty to 31 counts of a 96-count indictment arising from a
mortgage fraud scheme. This court affirmed that judgment in State v. Alt, 8th Dist. No.
96289, 2011-Ohio-5393.
The Supreme Court of Ohio denied Alt’s motion for leave to appeal and dismissed
the appeal as not involving any substantial constitutional question. State v. Alt,131 Ohio
St.3d 1459, 2012-Ohio-648, 961 N.E.2d 1137 .
Alt has filed with the clerk of this court an application for reopening. She asserts
that she was denied the effective assistance of appellate counsel because appellate
counsel did not assign the ineffective assistance of trial counsel as error. We deny the
application for reopening. As required by App.R. 26(B)(6), the reasons for our denial
follow.
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
4
for untimely filing if the application is filed more than ninety days after journalization of
the appellate judgment.”
This court’s decision affirming applicant’s conviction was journalized on October
20, 2011. The application was filed on April 4, 2012, clearly in excess of the ninety-day
limit. Alt asserts that various circumstances constitute good cause for the delay in her
filing the application for reopening.
She observes that she has been imprisoned since 2009 and has had minimal contact
with appellate counsel. “In State v. Lamar (Oct. 15, 1985), Cuyahoga App. No. 49551,
reopening disallowed (Nov. 15, 1995), Motion No. 263398, this court held that lack of
communication with appellate counsel did not show good cause.” State v. Bess, 8th
Dist. No. 91560, 2009-Ohio-2032, reopening disallowed, 2011-Ohio-5490, ¶ 4.
“Minimal contact” also does not demonstrate good cause.
Alt also states that she did not receive copies of the notice of appeal and briefs
filed in her direct appeal. “It is well-established that ‘inability to access the record,’
reliance on counsel as well as the failure of appellate counsel ‘to communicate with
[applicant] and provide him with necessary records’ do not provide a basis for finding
that an applicant has good cause for the untimely filing of an application for reopening.
Application, at 3-4.” (Citation omitted.) State v. Morgan, 8th Dist. No. 55341, (Mar.
16, 1989), reopening disallowed, 2007-Ohio-5532, ¶ 7. See also State v. Howell, 8th
Dist. No. 92827, 2010-Ohio-3403, reopening disallowed, 2011-Ohio-3683 (appellate
5
counsel’s failure to give applicant a copy of trial transcripts is not good cause).
Appellate counsel’s failure to send copies of the notice of appeal and appellate briefs to
Alt is comparable to the lack of access to other court records experienced by other
applicants. That is, the fact that appellate counsel did not provide Alt the notice of
appeal and briefs in the direct appeal does not establish good cause for the delay in filing
the application for reopening.
Alt indicates that she never received a copy of this court’s decision on her direct
appeal. The failure of appellate counsel to notify a defendant-appellant of the judgment
of the court of appeals is not good cause for the untimely filing of an application for
reopening. See State v. Mitchell, 8th Dist. No. 88977, 2007-Ohio-6190, reopening
disallowed, 2009-Ohio-1874.
She also states that appellate counsel never informed her of the option of filing
an application for reopening under App.R. 26(B). “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.” (Citation omitted.) State
v. Pruitt, 8th Dist. Nos. 86707 and 86986, 2006-Ohio-4106, reopening disallowed,
2012-Ohio-94, ¶ 5. Similarly, the failure of Alt’s appellate counsel to inform her of the
option of filing an application for reopening is not good cause for the untimely filing of
her application.
6
Alt complains that she did not learn that she could seek reopening until she
engaged new counsel. As the authorities above indicate, however, Alt’s reliance on
appellate counsel does not establish good cause for the untimely filing of her application.
As the discussion above demonstrates, none of the circumstances asserted by Alt
constitutes good cause.
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, and State v. LaMar, 102
Ohio St.3d 467, 2004-Ohio-3976, 812 N.E.2d 970. Applicant’s failure to demonstrate
good cause is a sufficient basis for denying the application for reopening. See, e.g.,
State v. Almashni, 8th Dist. No. 92237, 2010-Ohio-898, reopening disallowed,
2012-Ohio-349.
Accordingly, the application for reopening is denied.
_______________________________________________
KATHLEEN ANN KEOUGH, JUDGE
MARY J. BOYLE, P.J., and
KENNETH A. ROCCO, J., CONCUR