State v. Calloway ( 2013 )

[Cite as State v. Calloway, 2013-Ohio-5880.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, )
) CASE NO. 10 MA 147
PLAINTIFF-APPELLEE, )
)
- VS - ) OPINION
) AND
NICHOLAS A. CALLOWAY, ) JUDGMENT ENTRY
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Application for Reopening.
JUDGMENT: Application Denied.
APPEARANCES:
For Plaintiff-Appellee: Attorney Paul J. Gains
Prosecuting Attorney
Attorney Ralph M. Rivera
Assistant Prosecuting Attorney
21 West Boardman Street, 6th Floor
Youngstown, OH 44503
For Defendant-Appellant: Nicholas A. Calloway, Pro-se
#591-293
Lake Erie Correctional Institution
501 Thompson Road
P.O. Box 8000
Conneaut, OH 44030-8000
JUDGES:
Hon. Mary DeGenaro
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Dated: December 20, 2013
[Cite as State v. Calloway, 2013-Ohio-5880.]
PER CURIAM.
{¶1} On November 25, 2013, Appellant Nicholas Calloway, acting pro se, filed an
application for delayed reopening of his appeal based on a claim of ineffective assistance
of appellate counsel pursuant to App.R. 26(B). Because Calloway has failed to
demonstrate good cause for the untimeliness of the application, we decline to reopen his
appeal.
{¶2} On January 7, 2010, Calloway was indicted on one count of burglary. Just
over a month later, in a separate trial court case number, Calloway was indicted on four
counts of burglary and one count of receiving stolen property. The cases proceeded
together in the trial court. On June 1, 2010, pursuant to a Crim.R. 11(F) plea agreement
and following a hearing, Calloway pled guilty to five counts of burglary. As part of the
agreement, the State dismissed the receiving stolen property charge. At the beginning of
the sentencing hearing, on August 6, 2010, Calloway moved to withdraw his guilty plea.
The trial court denied the motion, and proceeded to sentence Calloway to a term of two
years imprisonment on each of the five burglary counts, to be served consecutively, for an
aggregate term of ten years. (8/11/10 J.E.)
{¶3} Calloway filed a direct appeal asserting that the State breached its plea
agreement with him; that the trial court erred in finding that Calloway breached the plea
agreement by making a motion to vacate his plea; and that the trial court erred by denying
the plea withdrawal motion. See State v. Calloway, 7th Dist. No. 10 MA 147, 2011-Ohio-
4257. This court affirmed, id., and the Ohio Supreme Court declined jurisdiction. State v.
Calloway, 130 Ohio St. 3d 1497, 2011-Ohio-6556, 958 N.E.2d 959 (Table).
{¶4} App.R. 26(B) allows a criminal defendant to challenge the constitutional
effectiveness of appellate counsel. However, the rule provides that an application for
reopening must be filed "within ninety days from journalization of the appellate judgment
unless the applicant shows good cause for filing at a later time." Calloway has failed to
meet this deadline. Our opinion in his direct appeal was journalized on August 19, 2011.
-2-
Calloway filed his application for reopening on November 25, 2013, over two years after
the deadline expired. Thus, we can only review the merits of Calloway's application if he
can establish good cause for his untimely filing.
{¶5} The body of his application does not specify the reason behind the two-year
delay in filing his application. Calloway's affidavit acknowledges the untimeliness and
goes on to state that "Appellant had to get the assistance of a legal clerk (inmate) to help
him file this delayed 26(B) on behalf of the Appellant."
{¶6} This does not constitute good cause. The fact that Calloway was
incarcerated or untrained in the law does not establish good cause. See State v. Dew,
7th Dist. No. 08 MA 62, 2012-Ohio-434, ¶8; State v. Ramirez, 8th Dist. No. 78364, 2005-
Ohio-378, ¶4.
{¶7} Because Calloway has failed to establish good cause for the delay in filing,
his application for reopening is denied.
DeGenaro, J., concurs.
Donofrio, J., concurs.
Vukovich, J., concurs.