State v. Rolling ( 2014 )

[Cite as State v. Rolling, 2014-Ohio-4373.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
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JOURNAL ENTRY AND OPINION
No. 83051
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STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
MICHAEL ROLLING
DEFENDANT-APPELLANT
JUDGMENT:
APPLICATION DENIED
Cuyahoga County Court of Common Pleas
Case No. CR-02-421317-ZA
Application for Reopening
Motion No. 476390
RELEASE DATE: September 30, 2014
FOR APPELLANT
Michael Rolling, pro se
Inmate No. 443-440
Marion Correctional Institution
P.O. Box 57
Marion, Ohio 43301
ATTORNEY FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
SEAN C. GALLAGHER, P.J.:
{¶1} Applicant, Michael Rolling, has filed a second application to reopen the
instant appeal. In this matter, Rolling filed a motion for delayed appeal, which was
denied. Rolling previously filed an application for reopening, which was denied by
State v. Rolling, 8th Dist. Cuyahoga No. 83051, 2007-Ohio-2635, motion No. 394817
(“Rolling I”), because the application was untimely and because App.R. 26(B) is
inapplicable where no appellate judgment is announced or journalized. Alternatively,
Rolling moves this court for delayed reconsideration of either this court’s denial of his
motion for delayed appeal or the dismissal of his original appeal in State v. Rolling, 8th
Dist. Cuyahoga No. 82526. The state has not responded to Rolling’s application. For
the reasons that follow, we deny the application for reopening and the request for delayed
reconsideration.
{¶2} The reasons for denying the application set forth in Rolling I still apply. There
has been no appellate judgment announced or journalized because Rolling’s motion for
leave to file a delayed appeal was denied. Likewise, there was no appellate judgment
rendered in State v. Rolling, 8th Dist. Cuyahoga No. 82526, which was also dismissed for
failure to file the record. Further, the Ohio Supreme Court has established that “‘there is
no right to file successive applications for reopening’ under App.R. 26(B).” State v.
Twyford, 106 Ohio St. 3d 176, 2005-Ohio-4380, 833 N.E.2d 289, ¶ 6, quoting State v.
Williams, 99 Ohio St. 3d 179, 2003-Ohio-3079, 790 N.E.2d 299, ¶ 12.
{¶3} Additionally, the application is untimely. Even if App.R. 26(B) could be
applied to an appeal that was dismissed without a decision, this application is well beyond
the 90-day time limit established by the rule. Rolling offers no good cause for failing to
bring a timely application.
{¶4} Finally, Rolling’s only proffered basis for seeking reopening is that counsel’s
alleged failure to perfect a timely appeal deprived him of his ability to challenge the
constitutionality of his guilty plea. This claim is barred by res judicata. This court has
addressed the validity of Rolling’s guilty plea in State v. Rolling, 8th Dist. Cuyahoga No.
95473, 2011-Ohio-121. Accordingly, even if we were to consider a delayed motion for
reconsideration of the dismissal of the appeal, it would be pointless to reopen it where the
only potential error that Rolling has identified is barred by res judicata.
{¶5} The application for reopening is denied.
SEAN C. GALLAGHER, PRESIDING JUDGE
KENNETH A. ROCCO, J., and
TIM McCORMACK, J., CONCUR