State v. May , 2012 Ohio 3072 ( 2012 )

[Cite as State v. May, 2012-Ohio-3072.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
Nos. 96362 and 96421
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
GLEN MAY
DEFENDANT-APPELLANT
JUDGMENT:
APPLICATION DENIED
Cuyahoga County Common Pleas Court
Case Nos. CR-519564 and CR-524278
Application for Reopening
Motion No. 455119
RELEASE DATE: July 2, 2012
FOR APPELLANT
Glen May, Pro Se
No. 571-873
Trumbull Correctional Institution
P.O. Box 901
Leavittsburg, Ohio 44430
ATTORNEYS FOR APPELLEE
William D. Mason, Esq.
Cuyahoga County Prosecutor
By: Brent Kirvel, Esq.
James M. Price,Esq.
Assistant Prosecuting Attorneys
8th Floor, Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
JAMES J. SWEENEY, J.:
{¶1} On May 16, 2012, the applicant, Glen May, pursuant to App.R. 26(B),
applied to reopen this court’s judgment in State v. May, 8th Dist. Nos. 96362 and 96421,
2011-Ohio-6647, in which this court ordered that sentencing be modified and remanded
for correction. May claims that his appellate counsel was ineffective for not arguing trial
counsel’s waiver of May’s right to a speedy trial in violation of Ohio law. For the
following reasons, this court denies the application.
{¶2} App.R. 26(B)(1) and (2)(b) require applications claiming ineffective
assistance of appellate counsel to be filed within 90 days from journalization of the
decision unless the applicant shows good cause for filing at a later time. In the present
case, this court journalized its decision on December 22, 2011, and May did not file his
application for reopening until May 16, 2012. Therefore, because the period between this
court’s journalization and the filing of the application totals 146 days, the application is
untimely on its face.
{¶3} States “may erect reasonable procedural requirements for triggering the right
to an adjudication.” Logan v. Zimmerman Brush Co., 455 U.S. 422, 437, 102 S.Ct. 1148,
71 L.Ed.2d 265 (1982). Ohio has done so by creating a 90-day deadline for the filing of
applications to reopen. State v. Gumm, 103 Ohio St.3d 162, 2004-Ohio-4755, 814 N.E.2d
861. 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. Id. at ¶ 7.
{¶4} May makes no effort in his application for reopening pursuant to App.R.
26(B) to show good cause for his failure to file his application within the time limit set by
the rule. Instead, May simply argues the ineffectiveness of his appellate counsel without
offering a sound reason why he could not comply with the 90-day fundamental
requirement. May seems to confuse this court’s order and journalization with the trial
court’s order reinstating the case for remand on February 22, 2012 in regards to the
timing requirement. However, that does not provide good cause. Thus, his application
is untimely and without good cause.
{¶5} Additionally, May failed to comply with App.R. 26(B)(2)(d), which
requires the applicant to file a sworn statement of error explaining the manner in which
counsel’s deficiency affected the outcome of the case. May’s application contains no
such sworn affidavit and is thus denied.
{¶6} Accordingly, this court denies the application to reopen.
JAMES J. SWEENEY, JUDGE
MARY EILEEN KILBANE, P.J., and
COLLEEN CONWAY COONEY, J., CONCUR