State v. Herns ( 2024 )

[Cite as State v. Herns, 2024-Ohio-2023.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MAHONING COUNTY
STATE OF OHIO,
Plaintiff-Appellee,
v.
FRANKLIN CHARLES HERNS,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 23 MA 0055
Application for Reconsideration
BEFORE:
Katelyn Dickey, Cheryl L. Waite, Carol Ann Robb, Judges.
JUDGMENT:
Denied.
Atty. Gina DeGenova, Mahoning County Prosecutor, and Atty. Edward A. Czopur,
Assistant Prosecuting Attorney, for Plaintiff-Appellee and
Franklin Charles Herns, Defendant-Appellant.
Dated: May 24, 2024
–2–
PER CURIAM.
{¶1} On April 4, 2024, Appellant, Franklin Charles Herns, acting pro se, filed an
application for reconsideration of our opinion and judgment entry issued on
March 21, 2024, affirming his conviction for one count of rape in violation of R.C.
2907.02(A)(2), in State v. Herns, 7th Dist. Mahoning No. 23 MA 0055, 2024-Ohio-1099.
The state filed a response brief on April 5, 2024, asserting the application was untimely
and should otherwise fail on the merits, as Appellant had not identified an obvious error
or an issue not fully considered in our March 21, 2024 opinion and judgment entry.
{¶2} App.R. 26(A)(1)(a) provides, in its entirety, “[a]pplication for reconsideration
of any cause or motion submitted on appeal shall be made in writing no later than ten
days after the clerk has both mailed to the parties the judgment or order in question and
made a note on the docket of the mailing as required by App. R. 30(A).”
{¶3} Our March 21, 2024 opinion and judgment entry were mailed to Appellant
on March 22, 2024 and a note relevant to this mailing was placed on the docket on the
same day, thereby creating a deadline of April 1, 2024 for a timely application. However,
Appellant filed his application on April 4, 2024. Appellant did not file a motion for an
enlargement of time.
{¶4} We have previously refused to consider an application for reconsideration
filed one day after the filing deadline. State v. Perdue, 7th Dist. Mahoning No. 16 MA
0156, 2018-Ohio-252. Moreover, the three-day mailing rule of App.R. 14(C) does not
apply to applications for reconsideration or motions to certify a conflict. See State v.
Panezich, 7th Dist. Mahoning No. 17 MA 0087, 2018-Ohio-3974, ¶ 2; Peters v. Tipton,
7th Dist. Harrison No. 13 HA 10, 2015-Ohio-3307.
{¶5} While we may enlarge the time to accept an application for reconsideration
based on a showing of extraordinary circumstances, Panezich, supra, at ¶ 2, Appellant
has failed to articulate any reason for the delay. Accordingly, we decline to consider
Appellant’s untimely application for reconsideration.
{¶6} Even if we were to consider the application, Appellant does not raise an
obvious error or an issue that we did not consider or fully consider in our decision.
App.R. 26 provides for the filing of an application for reconsideration, but provides no
standard to determine whether a decision should be reconsidered. The test generally
Case No. 23 MA 0055
–3–
applied in this District is “whether the application calls to the attention of the court an
obvious error in its decision or raises an issue for our consideration that was either not at
all or was not fully considered by us when it should have been.” State v. Griffin, 7th Dist.
Mahoning No. 22 MA 0126, 2024-Ohio-412,
{¶7} “Mere disagreement with our logic and conclusions does not support an
application for reconsideration.” State v. Carosiello, 7th Dist. Columbiana No. 15 CO
0017, 2018-Ohio-860, ¶ 12. Rather, App.R. 26 provides a mechanism by which a party
may prevent a miscarriage of justice that could arise when an appellate court makes an
obvious error or renders an unsupportable decision under the law. Id.{¶8} In the application for reconsideration, Appellant challenges our
determination that pre-indictment delay of nine years did not cause actual prejudice to his
defense. Appellant argued in his original brief that notes from the victim’s interview on
September 6, 2013 with licensed social worker, Cynthia Carter, which were missing from
the criminal case file, would have minimized or eliminated the impact of the victim’s
testimony at trial.
{¶9} In our March 21, 2024 opinion and judgment entry, we opined that
Appellant’s actual prejudice argument was predicated upon speculation regarding the
contents of the missing notes. Moreover, there was no evidence in the record to establish
defense counsel’s efforts to locate Cynthia Carter. Instead, defense counsel relied on the
representation of Detective Sergeant Jessica Shields, who reopened the investigation in
2022, that Cynthia Carter had retired and could not be found. Finally, the victim testified
that her interview with Cynthia Carter had been videotaped. However, Shields testified
that social worker interviews are never videotaped.
{¶10} Appellant asserts in the application for reconsideration:
What was not fully considered is that the record would also contain a (4th)
testimonial evidence from the alleged victim herself during trial where she
had mentioned that the conversation that she had with Cynthia Carter was
recorded.
That video recorded conversation with Cynthia Carter that was not fully
considered in this court’s decision would have also established not only that
Case No. 23 MA 0055
–4–
no rape ever occurred but also it would establish that the alleged victim had
refused to press charges during that video recorded conversation before
meeting back with the detectives and signing a victim refusal to prosecute
form.
(Application at p. 4.)
{¶11} In the application for reconsideration, Appellant merely disagrees with our
conclusion that his actual prejudice argument predicated upon the notes and videotape
(which may not have ever been recorded) from the Cynthia Carter interview relies on
speculation regarding the content. To the extent that we fully addressed Appellant’s
argument regarding the missing Cynthia Carter notes, he has failed to demonstrate that
we failed to fully consider their impact on his due process claim.
{¶12} For the foregoing reasons, Appellant’s application for reconsideration is
denied.
JUDGE KATELYN DICKEY
JUDGE CHERYL L. WAITE
JUDGE CAROL ANN ROBB
NOTICE TO COUNSEL
This document constitutes a final judgment entry.
Case No. 23 MA 0055