State v. Dew , 2012 Ohio 434 ( 2012 )

[Cite as State v. Dew, 2012-Ohio-434.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, )
) CASE NO. 08 MA 62
PLAINTIFF-APPELLEE, )
)
- VS - ) OPINION
) AND
GREGORY DEW, ) JUDGMENT ENTRY
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Application for Reopening, Criminal
Appeal from Common Pleas Court,
Cases Nos. 07 CR 378 & 07 CR 1262.
JUDGMENT: Application Denied.
APPEARANCES:
For Plaintiff-Appellee: Attorney Paul J. Gains
Prosecuting Attorney
Attorney Ralph M. Rivera
Asst. Prosecuting Attorney
21 W. Boardman Street, 6th Floor
Youngstown, OH 44503
For Defendant-Appellant: Gregory S. Dew, Pro-se
#543-986
Trumbull Correctional Institution
P.O. Box 901
Leavittsburg, OH 44430
JUDGES:
Hon. Mary DeGenaro
Hon. Cheryl L. Waite
Hon. Joseph J. Vukovich
Dated: January 31, 2012
[Cite as State v. Dew, 2012-Ohio-434.]
PER CURIAM:
{¶1} Appellant Gregory Dew, pro-se, has filed an application to reopen his
appeal based on a claim of ineffective assistance of appellate counsel. However, Dew's
application is untimely, and we conclude that he has failed to demonstrate good cause.
Accordingly, his application to reopen his appeal is denied.
{¶2} Dew was convicted of four counts of rape, two counts of gross sexual
imposition, and one count of corruption of a minor on April 1, 2008, in the Mahoning
County Court of Common Pleas, following a jury trial. The trial court sentenced him to an
aggregate term of 43 years of imprisonment. On December 1, 2009, we reversed and
vacated the trial court's judgment in part, holding that one count of gross sexual
imposition and one count of rape were not supported by sufficient evidence because the
State failed to set forth evidence of "force or threat of force." We upheld the remainder of
Dew's convictions, resulting in a 31.5 year sentence. State v. Dew, 7th Dist. No. 08 MA
62, 2009-Ohio-6537.
{¶3} On December 14, 2009, Dew filed a motion for reconsideration, which we
denied on January 21, 2010. He filed a memorandum in support of jurisdiction with the
Ohio Supreme Court on January 14, 2010, and the Court denied the appeal on March 10,
2010. State v. Dew, 124 Ohio St.3d 1510, 2010-Ohio-799, 922 N.E.2d 972. The United
States Supreme Court denied Dew's petition for writ of certiorari on November 15, 2010.
Dew v. Ohio, __ U.S. __, 131 S.Ct. 594, 178 L.Ed.2d 434 (2010).
{¶4} On March 25, 2011, Dew filed a pro-se motion entitled "Appellant's Request
to Extend the Number of Pages for Delayed Application for Reopening Pursuant to
Appellate Rule 26(B)," which we denied on April 14, 2011 because 08MA62 was a closed
case, thus we were unable to rule on the motion. Dew filed this same motion again on
April 29, 2011, and we denied his motion for the same reasons on May 17, 2011.
{¶5} On November 14, 2011, Dew filed the present application pro-se, with four
affidavits attached. The State responded on November 17, 2011. Dew filed a pro-se
motion for leave to reply to the State's response on November 23, 2011. We denied this
motion on November 30, 2011 because App.R. 26(B) does not provide for such a reply.
-2-
{¶6} App.R. 26(B) allows a criminal defendant to challenge the constitutional
effectiveness of appellate counsel by reopening the appeal. However, the rule provides
that an application for reopening must be filed "within ninety days from journalization of
the appellate judgment unless the applicant shows good cause for filing at a later time."
Dew has failed to meet this deadline. Our opinion in his direct appeal was journalized on
December 1, 2009. Dew filed his application for reopening on November 14, 2011,
almost two years after the deadline expired. Thus, we can only review the merits of
Dew's application if he can establish good cause for his untimely filing. Dew's claims do
not constitute good cause.
{¶7} Dew contends that because he is incarcerated, he lacked the ability to
gather evidence and affidavits to support his motion. He claims that he was forced to rely
on outside sources to obtain this evidence, which caused delays in filing.
{¶8} As argued by the state, Dew's incarceration alone cannot establish good
cause, and his arguments would apply to all offenders incarcerated after their convictions.
If the sole fact that an offender is incarcerated constitutes good cause, this would render
the time limit for filing in App.R. 26(B) meaningless. As the Ohio Supreme Court
instructed:
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. State v. Gumm, 103
Ohio St.3d 162, 2004-Ohio-4755, 814 N.E.2d 861, ¶ 7.
{¶9} Furthermore, although Dew contends that he encountered "unavoidable
delays" in completing this application, he has failed to present any affidavits explaining
why it took him almost two years to file. App.R. 26(B)(2)(e); State v. Styblo, 7th Dist. No.
07 BE 18, 2011-Ohio-2000, ¶ 4. Instead, Dew's affidavits rehash prior legal arguments or
are attempts to introduce new evidence after both a trial and direct appeal on the merits
have already taken place.
-3-
{¶10} Because Dew failed to establish good cause for the delay in filing for
reopening his appeal, his application for reopening is denied.
DeGenaro, J., concurs.
Waite, P.J., concurs.
Vukovich, P., concurs.