State v. Lenhart ( 2024 )

[Cite as State v. Lenhart, 2024-Ohio-462.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 74332
v. :
CHRISTOPHER LENHART, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: APPLICATION DENIED
RELEASED AND JOURNALIZED: February 6, 2024
Cuyahoga County Court of Common Pleas
Case No. CR-97-356977-ZA
Application for Reopening
Motion No. 570950
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Anthony T. Miranda, Assistant Prosecutor,
for appellee.
Christopher Lenhart, pro se.
LISA B. FORBES, J.:
Applicant, Christopher Lenhart, for the second time seeks to reopen
his appeal in State v. Lenhart, 8th Dist. Cuyahoga No. 74332, 1999 Ohio App.LEXIS
3379 (July 22, 1999) (“Lenhart I”). Because successive applications to reopen an
appeal are not allowed by App.R. 26(B) and the application is untimely without a
showing of good cause, the application for reopening is denied.
I. Procedural History
In 1998, Lenhart was convicted of rape and felonious assault, for
which he received an aggregate seven-year prison sentence. He appealed his
convictions to this court arguing that the trial court erred in allowing the state to
impeach its own witness, Lenhart’s rape conviction was based on insufficient
evidence and was against the manifest weight of the evidence, the trial court erred
in limiting cross-examination of the victim, and defense counsel fell below the
standard for constitutionally ineffective assistance. Lenhart I at 1. On July 22, 1999,
this court issued an opinion that overruled Lenhart’s assigned errors and affirmed
his convictions. Id. at 31. Lenhart has served his prison sentence and period of
postrelease control.
Throughout the years, Lenhart has attempted to vacate portions of his
sentence and has sought additional DNA testing. These collateral proceedings have
little bearing on the present application so they will not be restated here.1 The
relevant procedural history is that on January 17, 2019, Lenhart filed an application
to reopen Lenhart I in State v. Lenhart, 8th Dist. Cuyahoga No. 74332, 2019-Ohio-
1113 (“Lenhart II”). On March 27, 2019, this court denied the application for
1 A more thorough review of the procedural history of Lenhart’s various motions
and appeals can be found in State v. Lenhart, 8th Dist. Cuyahoga No. 110226, 2022-Ohio-
125.
reopening based on Lenhart’s failure to show good cause for the substantial delay in
filing. Id. at ¶ 7.
Now, almost four years after his initial application for reopening,
Lenhart again seeks to reopen the appeal from his 1998 criminal convictions. On
January 3, 2024, he filed the present successive application where he asserted the
following proposed assignments of error:
1. Appellate counsel never inquired into the fact that trial counsel
allowed Mr. Lenhart to take the stand to testify on his behalf without
first hiring an expert to investigate and test said biological material in
the custody of the state of Ohio.
The fact that trial counsel failed to inquire into the reliability of the
biological material applicant believes falls under the case of United
States v. Cronic, 466 US 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984).
Citing Strickland, Supra.
2. Appellate counsel never inquired into the fact that the trial court
never conducted a Daubert hearing to determine if in fact Ms. Tina
Wolfe was testifying within the [sic] EVID.R.702.
Ms. Wolfe was testifying to evidence that was not tested for its
reliability and was believed to be true by the jury which in fact denied
applicant a fair trial.
There was testimony by a nurse that she and detective Coleman opened
and started to conduct some testing and procedure but there was no
report of her as a[n] expert to in fact conduct the procedures she was
asked to do by Det. Coleman.
3. Appellate counsel never inquired into the fact that the statement of
the victim (C.S.) deferred [sic] later from the initial statement. She first
stated there was two (2) attackers and later recanted after applicant
believes that the biological material was altered and or contaminated
by the nurse and Det. Coleman. The nurse admitted in trial that she was
doing what Det. Coleman asked of her.
4. Appellate counsel failed to inquire into the fact that the jury never
decided what if any subsection of R.C.2907.02 as it was left blank.
The trial court stated that applicant knows what subsection he’s guilty
of which is structural error as the jury must decide guilt. See
Crim.R.52(B).
Lenhart’s application acknowledged untimely filing, but only stated
that he was late in filing because “he was never put on notice that the biological
material was missing that was disclosed upon request [sic] the state of Ohio.”
On January 4, 2024, the state filed a brief in opposition to Lenhart’s
second application for reopening. There, it argued that successive applications for
reopening were prohibited, the application was untimely without a showing of good
cause, and the application lacked a sworn statement attesting to the basis for the
claimed ineffective assistance of appellate counsel.
II. Law and Analysis
App.R. 26(B) provides a means to raise claims of ineffective
assistance of appellate counsel in criminal cases. Under this rule, an applicant can
argue a claim of ineffective assistance of appellate counsel, which is analyzed using
the same standard for ineffective assistance of trial counsel announced in Strickland
v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). State v. Leyh,
166 Ohio St.3d 365, 2022-Ohio-292, 185 N.E.3d 1075, ¶ 17. The application shall be
granted if “there is a genuine issue as to whether the applicant was deprived of the
effective assistance of counsel on appeal.” App.R. 26(B)(5).
However, “there is no right to file successive applications for
reopening” under App.R. 26(B). State v. Williams, 99 Ohio St.3d 179, 2003-Ohio-
3079, 790 N.E.2d 299, ¶ 12. “Neither App.R. 26(B) nor State v. Murnahan, 63 Ohio
St.3d 60, 584 N.E.2d 1204 (1992), provides a criminal defendant the right to file
second or successive applications for reopening.” Id. at ¶ 10. Accord State v.
Meadows, 8th Dist. Cuyahoga No. 111950, 2023-Ohio-3469, ¶ 4. Lenhart previously
filed an application for reopening in 2019, which was denied in Lenhart II. Lenhart
does not address under what authority this court may grant a successive application,
and the above authority states that successive applications are not permitted.
Accordingly, this successive application must be denied.
Further, an application for reopening must be filed within 90 days of
the journalization of the appellate decision in the appeal that is the subject of
reopening. App.R. 26(B)(1). The failure to file within 90 days requires the
application to establish good cause to excuse the delay in filing. App.R. 26(B)(2)(b).
Where arguments going to good cause exist, “[g]ood cause can excuse the lack of a
filing only while it exists, not for an indefinite period.” State v. Fox, 83 Ohio St.3d
514, 516, 700 N.E.2d 1253 (1998), citing State v. Hill, 78 Ohio St.3d 174, 677 N.E.2d
337 (1997), and State v. Carter, 70 Ohio St.3d 642, 640 N.E.2d 811 (1994).
The present application is untimely without a showing of good cause
to excuse the over 24-year delay in filing. In support of good cause, Lenhart argues
that “he was never put on notice that the biological material was missing that was
disclosed upon request [sic] the state of Ohio.” He does not further elaborate. In
any event, none of the proposed assignments of error relate to missing or untested
biological materials. The proposed assignments of error deal with trial issues that
were known or reasonably could have been known at the time of the direct appeal
or within 90 days the appellate decision. Lenhart’s stated reason for the delayed
filing does not provide a basis for this court to excuse a 24-year delay. Therefore,
Lenhart has not set forth good cause to establish why he was prevented from timely
filing an application for reopening within 90 days. Therefore, the application must
be denied.
Application denied.
LISA B. FORBES, JUDGE
EILEEN T. GALLAGHER, P.J., and
EILEEN A. GALLAGHER, J., CONCUR