State v. Rhodes ( 2012 )


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  • [Cite as State v. Rhodes, 
    2012-Ohio-471
    .]
    Court of Appeals of Ohio
    EIGHTH APPELLATE DISTRICT
    COUNTY OF CUYAHOGA
    JOURNAL ENTRY AND OPINION
    Nos. 95683 and 96337
    STATE OF OHIO
    PLAINTIFF-APPELLEE
    vs.
    VINCENT RHODES
    DEFENDANT-APPELLANT
    JUDGMENT:
    APPLICATION DENIED
    Cuyahoga County Common Pleas Court
    Case No. CR-509952
    Application for Reopening
    Motion No. 451048
    RELEASE DATE: February 6, 2012
    FOR APPELLANT
    Vincent Rhodes
    Inmate No. 563-626
    Trumbull Correctional Inst.
    P. O. Box 901
    Leavittsburg, OH 44430
    ATTORNEYS FOR APPELLEE
    William D. Mason
    Cuyahoga County Prosecutor
    By: Kristin Karkutt
    Diane Smilanick
    Assistant Prosecuting Attorneys
    The Justice Center, 9th Floor
    1200 Ontario Street
    Cleveland, OH 44113
    COLLEEN CONWAY COONEY, J.:
    {¶ 1} Vincent Rhodes has filed an application for reopening pursuant to App.R.
    26(B).     He seeks to reopen the appellate judgment in State v. Rhodes, 8th District Nos. 95683
    and 96337, 
    2011-Ohio-5153
    , 
    2011 WL 4599898
    , which affirmed his resentencing to a
    seven-year term of incarceration and a $250 fine plus costs.        We decline to reopen his
    appeals.
    {¶ 2} App.R. 26(B)(2)(b) requires that Rhodes establish “a showing of
    good cause for untimely filing if the application is filed more than 90 days
    after journalization of the appellate judgment,” which 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 firmly established that:
    We now reject [the applicant’s] claim that those excuses gave him
    good cause to miss the 90-day deadline in App.R. 26(B). The rule
    was amended to include the 90-day deadline more than seven
    months before [the applicant’s] appeal of right was decided by the
    court of appeals in February 1994, so the rule was firmly
    established then, just as it is today. 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 applicant] could have retained
    new attorneys after the court of appeals issued its decision in
    1994, or he could have filed the application on his own. What he
    could not do was ignore the rule’s filing deadline. * * * 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
    , at ¶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
    , 
    1995-Ohio-328
    , 
    653 N.E.2d 252
    ; State v. Reddick, 
    72 Ohio St.3d 88
    , 
    1995-Ohio-249
    , 
    647 N.E.2d 784
    .
    {¶ 3} Rhodes    is   attempting   to   reopen   the   appellate   judgment
    journalized on October 6, 2011. The application for reopening was not filed
    until Friday, January 6, 2012, more than 90 days after journalization of the
    appellate judgment in Rhodes.     Rhodes has failed to raise or argue “good
    cause” for the untimely filing of his application for reopening. State v. Klein,
    8th Dist. No. 58389, 
    1991 WL 41746
     (Apr. 8, 1991), reopening disallowed
    (Mar. 15, 1994), Motion No. 49260, aff’d, 
    69 Ohio St.3d 1481
    , 
    634 N.E.2d 1027
    ; State v. Trammell, 8th Dist. No. 67834, 
    1995 WL 415171
     (July 24,
    1995), reopening disallowed (Apr. 22, 1996), Motion No. 70493; State v. Travis
    8th Dist. No. 56825, 
    1990 WL 40573
     (Apr. 5, 1990), reopening disallowed
    (Nov. 2, 1994), Motion No. 51073, aff’d, 
    72 Ohio St.3d 317
    , 
    649 N.E.2d 1226
    (1995). See also State v. Gaston, 8th Dist. No. 79626, 
    2007 WL 117505
     (Jan.
    1, 2007) reopening disallowed (Jan. 17, 2007), Motion No. 391555; State v.
    Torres, 8th Dist. No. 86530, 
    2006-Ohio-3696
    , 
    2006 WL 2023578
    , reopening
    disallowed 
    2007-Ohio-9
    , Motion No. 390254.
    {¶ 4} Accordingly, the application for reopening is denied.
    COLLEEN CONWAY COONEY, JUDGE
    PATRICIA ANN BLACKMON, A.J., and
    MARY J. BOYLE, J., CONCUR
    

Document Info

Docket Number: 95683 96337

Judges: Cooney

Filed Date: 2/6/2012

Precedential Status: Precedential

Modified Date: 10/30/2014