Olmsted Falls v. Buckwald ( 2011 )

[Cite as Olmsted Falls v. Buckwald, 2011-Ohio-6174.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 94350
CITY OF OLMSTED FALLS
PLAINTIFF-APPELLEE
vs.
RALPH D. BUCKWALD
DEFENDANT-APPELLANT
JUDGMENT:
APPLICATION DENIED
Berea Municipal Court
Case Nos. 08TRC04655 and 08CRB01334
Application for Reopening
Motion No. 445265
RELEASE DATE: December 2, 2011
FOR APPELLANT
Ralph D. Buckwald
Inmate #0121730
Cuyahoga County Jail
P. O. Box 5600
Cleveland, OH 44101
ATTORNEY FOR APPELLEE
Gregory M. Sponseller
Director of Law
City of Berea
11 Berea Commons
Berea, OH 44017
MARY EILEEN KILBANE, A.J.:
{¶ 1} On June 13, 2011, the applicant, Ralph Buckwald, pursuant to App.R. 26(B),
applied to reopen this court’s judgment in City of Olmsted Falls v. Ralph Buckwald (Dec. 9,
2009), Cuyahoga App. No. 94350 in which this court dismissed Buckwald’s appeal as
untimely.1 Buckwald who represented himself on appeal argues that his appeal should be
reopened because (1) he timely tendered his appellate papers to the clerk of the Berea
Municipal Court, but the clerk rejected them as incomplete, and (2) he should not have been
convicted of a motor vehicle offense because he was riding a bicycle at the time. For the
following reasons, this court denies his application to reopen.
1
On September 23, 2009, Buckwald pleaded no contest to driving under the influence, and
the court sentenced him to ten days in jail, one-year driver’s license suspension, and a $500 fine
suspended. Buckwald filed his appeal on November 30, 2009, without seeking leave to file a
delayed appeal.
{¶ 2} First, res judicata bars this application. See, generally, State v. Perry (1967),
10 Ohio St.2d 175, 226 N.E.2d 104. Res judicata prevents repeated attacks on a final
judgment and applies to all issues which were or might have been litigated. In State v.
Murnahan (1992), 63 Ohio St.3d 60, 584 N.E.2d 1204, the supreme court ruled that res
judicata may bar a claim of ineffective assistance of appellate counsel unless circumstances
render the application of the doctrine unjust.
{¶ 3} In the present case, Buckwald made the same argument on timeliness in a
motion for reconsideration filed on December 16, 2009, and in an addendum filed on
December 18, 2009, as he does in the present application to reopen. This court rejected that
argument in February 2010, by denying the motion for reconsideration under Appellate Rules
4, 5, and 26. This court should not and will not reconsider its ruling after the matter has been
fully and fairly presented.
{¶ 4} Moreover, an application to reopen pursuant to App.R. 26(B) is the wrong
remedy. Subsection (B)(1) states this remedy’s scope: “A defendant in a criminal case may
apply for reopening of the appeal from the judgment of conviction and sentence, based on a
claim of ineffective assistance of appellate counsel.” Because Buckwald represented himself
in the appeal, he is now precluded from arguing ineffective assistance of appellate counsel.
State v. Boone (1996), 114 Ohio App.3d 275, 683 N.E.2d 67; State v. Vines (Sept. 14, 1989),
Cuyahoga App. No. 55693 and (Nov. 3, 2000), Cuyahoga App. No. 78691, reopening
disallowed (June 5, 2003), Motion No. 347277; State v. Smith (Dec. 10, 2001), Cuyahoga
App. No. 79292, reopening disallowed (Mar. 8, 2002), Motion No. 336058; and State v.
Jackson, Cuyahoga App. No. 80118, 2002-Ohio-5461. As the United States Supreme Court
noted in Faretta v. California (1975), 422 U.S. 806, 834, n.46, 95 S.Ct. 2525, “a defendant
who elects to represent himself cannot thereafter complain that the quality of his own defense
amounted to a denial of ‘effective assistance of counsel.’”
{¶ 5} Finally, 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. The June 2011 application
was filed approximately a year and one-half after this court’s decision. Thus, it is untimely
on its face. However, Buckwald offers no explanation for his untimely filing of the
application to reopen. He only repeats his argument that he timely tendered the original
notice of appeal, but the municipal court clerk refused to file it for failure to tender the filing
fee. That does not satisfy the good cause requirement under App.R. 26(B). State v. LaMar,
102 Ohio St.3d 467, 2004-Ohio-3976, 812 N.E.2d 970, and State v. Gumm, 103 Ohio St.3d
162, 2004-Ohio-4755, 814 N.E.2d 861.
{¶ 6} Accordingly, this court denies the application to reopen.
MARY EILEEN KILBANE, ADMINISTRATIVE JUDGE
MARY J. BOYLE, J., and
SEAN C. GALLAGHER, J., CONCUR