State v. Carter ( 2011 )

[Cite as State v. Carter, 2011-Ohio-6256.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 94967
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
MICHAEL CARTER
DEFENDANT-APPELLANT
JUDGMENT:
APPLICATION DENIED
Cuyahoga County Common Pleas Court
Case No. CR-528720
Application for Reopening
Motion No. 448561
RELEASE DATE: December 2, 2011
FOR APPELLANT
Michael Carter
Inmate No. 582-874
Mansfield Correctional Inst.
P. O. Box 788
Mansfield, OH 44901
ATTORNEY FOR RESPONDENT
William D. Mason
Cuyahoga County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, OH 44113
SEAN C. GALLAGHER, J.:
{¶ 1} In State v. Carter, Cuyahoga County Court of Common Pleas
Case No. CR-528720, the trial court found applicant, Michael Carter,
guilty of gross sexual imposition and unlawful sexual conduct with a
minor. This court affirmed that judgment in State v. Carter, Cuyahoga
App. No. 94967, 2011-Ohio-2658.
{¶ 2} Carter has filed with the clerk of this court an application for
reopening. He asserts that he was denied the effective assistance of
appellate counsel because his appellate counsel did not assign as error
that trial counsel was ineffective; the state introduced evidence of his
prior convictions and juvenile court proceedings; and there was
insufficient evidence and the judgment was contrary to the manifest
weight of the evidence. We deny the application for reopening. As
required by App.R. 26(B)(6), the reasons for our denial follow.
{¶ 3} 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 for
untimely filing if the application is filed more than ninety days after
journalization of the appellate judgment.”
{¶ 4} This court’s decision affirming applicant's conviction was
journalized on June 2, 2011. The application was filed on October 14,
2011, clearly in excess of the ninety-day limit.
{¶ 5} Carter avers that he has good cause for the untimely filing of his
application for reopening because the prison librarian was on vacation
and then ill from August 14, 2011 through September 9, 2011, as well
as another seven days through September 25, 2011. Additionally,
when the librarian was available, the librarian was not able to print
documents for inmates’ legal research.
{¶ 6} That is, Carter contends that his limited access to library
resources establishes good cause for his untimely filing of the
application for reopening. “[T]he courts have rejected the claim that
limited access to legal materials states good cause for untimely filing.
Prison riots, lockdowns, and other library limitations have been
rejected as constituting good cause. State v. Tucker, 73 Ohio St.3d 152,
1995-Ohio-2; State v. Kaszas (Sept. 21, 1998), Cuyahoga App. Nos.
72547 and 72547, reopening disallowed (Aug. 14, 2000), Motion No.
316752; State v. Hickman (Apr. 30, 1998), Cuyahoga App. No. 72341,
reopening disallowed (Dec. 13, 2000), Motion No. 320830 and State v.
Turner (Nov. 16, 1989), Cuyahoga App. No. 55960, reopening disallowed
(Aug. 20, 2001), Motion No. 323221.” State v. Wynn, Cuyahoga App.
No. 94967, 2010-Ohio-5469, ¶3.
{¶ 7} 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; State v. LaMar, 102 Ohio St.3d 467,
2004-Ohio-3976, 812 N.E.2d 970. Carter’s failure to demonstrate good
cause is a sufficient basis for denying the application for reopening.
See, also, State v. Collier (June 11, 1987), Cuyahoga App. No. 51993,
reopening disallowed 2005-Ohio-5797, Motion No. 370333; State v.
Garcia (July 8, 1999), Cuyahoga App. No. 74427, reopening disallowed
2005-Ohio-5796, Motion No. 370916.
{¶ 8} As a consequence, Carter has not met the standard for reopening.
Accordingly, the application for reopening is denied.
SEAN C. GALLAGHER, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and
KENNETH A. ROCCO, J., CONCUR