State v. Williams ( 2014 )

[Cite as State v. Williams, 2014-Ohio-4196.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 90845
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
PATRICK WILLIAMS
DEFENDANT-APPELLANT
JUDGMENT:
APPLICATION DENIED
Cuyahoga County Court of Common Pleas
Case No. CR-07-494311-A
Application for Reopening
Motion No. 475308
RELEASE DATE: September 23, 2014
ATTORNEY FOR APPELLANT
Gregory Scott Robey
Robey & Robey
14402 Granger Road
Maple Heights, Ohio 44137
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Adam M. Chaloupka
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., P.J.:
{¶1} Patrick Williams has filed an application for reopening pursuant to App.R.
26(B). Williams is attempting to reopen the appellate judgment, as rendered in State v.
Williams, 8th Dist. Cuyahoga No. 90845, 2009-Ohio-2026, which affirmed his
convictions for aggravated murder, murder, and felonious assault. For the reasons that
follow, the application to reopen is denied.
{¶2} The appellate judgment was released on April 30, 2009, and journalized on
May 11, 2009. The application for reopening was not filed until May 29, 2014. This
falls well outside the time limits of App.R. 26(B)(1), which requires applications to be
filed within 90 days after journalization of the appellate judgment. The only exception
that would permit us to review an untimely application is if applicant establishes good
cause for filing at a later time. Id.
{¶3} The Supreme Court of Ohio, with regard to the 90-day deadline provided by
App.R. 26(B)(2)(b), has firmly established that
[c]onsistent 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., 455 U.S. 422, 437, 102 S.Ct 1148, 71 L. Ed. 2d 265 (1982), 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,
1996-Ohio-52, 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.
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, 653 N.E.2d 252 (1995); State v. Reddick, 72 Ohio St. 3d 88, 647 N.E.2d
784 (1995).
{¶4} Applicant has failed to establish “good cause” for the untimely filing of his
application for reopening. He maintains that there is good cause for his delayed filing
because he has had “no personal contact” with his appointed appellate lawyer, and he did
not receive copies of the appellate filings nor notice of the decision. Additionally,
applicant asserts that he was only 17 years old at the time of the trial and relied on his
appellate lawyer to raise all possible issues, to his detriment.
{¶5} Applicant cites no case that has found any of the foregoing grounds as good
cause for an application to reopen that is filed approximately five years after the appellate
decision was journalized. However, there is ample authority that has found these reasons
do not establish good cause for an untimely application to reopen.
{¶6} Appellate counsel cannot be considered ineffective for failing to raise every
conceivable assignment of error on appeal. Jones v. Barnes, 463 U.S. 745, 103 S. Ct.
3308, 77 L. Ed. 2d 987 (1983); Gumm, supra; State v. Campbell, 69 Ohio St. 3d 38, 630
N.E.2d 339 (1994). The United States Supreme Court has upheld the appellate
attorney’s discretion to decide which issues he or she believes are the most fruitful
arguments and the importance of winnowing out weaker arguments on appeal and
focusing on one central issue or at most a few key issues. Jones.
{¶7} It is well settled that “neither misplaced reliance on counsel nor lack of
communication between counsel and appellant provides good cause for a late filing of his
application for reopening.” State v. Gray, 8th Dist. Cuyahoga No. 92646,
2012-Ohio-3565, ¶ 3, citing State v. Alt, 8th Dist. Cuyahoga No. 96289, 2012-Ohio-2054;
State v. Austin, 8th Dist. Cuyahoga No. 87169, 2012-Ohio-1338; State v. Alexander, 8th
Dist. Cuyahoga No. 81529, 2004-Ohio-3861.
{¶8} Citing the applicant’s young age is the equivalent of arguing that his
ignorance of the law or lack of legal training and knowledge should establish good cause
for the delayed filing. However, it is equally well established that these grounds do not
provide good cause to allow review of an application that is filed five years beyond the
deadline. See State v. Mosley, 8th Dist. Cuyahoga No. 79463, 2005-Ohio-4137, ¶ 4 (“it
is well-established that a lack of legal training does not establish ‘good cause’ for the
untimely filing of an application for reopening”).
{¶9} Applicant also “cannot rely on his own alleged lack of legal training to
excuse his failure to comply with the deadline. ‘Lack of effort or imagination, and
ignorance of the law * * * do not automatically establish good cause for failure to seek
timely relief’ under App.R. 26(B).” LaMar, 102 Ohio St. 3d 467 at ¶ 9, quoting Reddick,
72 Ohio St. 3d at 91.
{¶10} It is proper to deny applications for reopening solely on the basis that they
are untimely filed and without good cause for the delay. Gumm, 103 Ohio St. 3d 162, and
LaMar. Applicant’s failure to demonstrate good cause is a sufficient basis for denying
his application for reopening. See, e.g., State v. Almashni, 8th Dist. Cuyahoga No.
92237, 2010-Ohio-898, reopening disallowed, 2012-Ohio-349.
{¶11} Applicant has not established good cause for filing an untimely application
for reopening.
{¶12} Accordingly, the application for reopening is denied.
FRANK D. CELEBREZZE, JR., PRESIDING JUDGE
KENNETH A. ROCCO, J., and
EILEEN T. GALLAGHER, J., CONCUR