State v. Henderson , 2013 Ohio 2524 ( 2013 )

[Cite as State v. Henderson, 2013-Ohio-2524.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95655
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
PAUL S. HENDERSON
DEFENDANT-APPELLANT
JUDGMENT:
APPLICATION DENIED
Cuyahoga County Court of Common Pleas
Case No. CR-530899
Application for Reopening
Motion No. 464772
RELEASE DATE: June 19, 2013
FOR APPELLANT
Paul S. Henderson, pro se
Inmate No. 573-468
Marion Correctional Institution
P.O. Box 57
Marion, Ohio 43302
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Diane Smilanick
Assistant County Prosecutor
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., J.:
{¶1} On May 7, 2013, the applicant, Paul Henderson, pursuant to App.R. 26(B)
and State v. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204 (1992), applied to reopen this
court’s judgment in State v. Henderson, 8th Dist. No. 95655, 2012-Ohio-1040, in which
this court affirmed Henderson’s convictions for drug trafficking, drug possession, and
possession of criminal tools. Henderson claims that he was deprived of the effective
assistance of appellate counsel. For the following reasons, this court denies the
application.
{¶2} App.R. 26(B)(1) and (2)(b) require applications claiming ineffective
assistance of appellate counsel to be filed within 90 days from journalization of the
decision unless the applicant shows good cause for filing at a later time. The May 2013
application was filed approximately 14 months after this court’s decision. Thus, it is
untimely on its face. In an effort to establish good cause, Henderson argues that he did
not receive notice of this court’s decision until August 2012, and then had difficulty in
obtaining the record from the public defender’s office, and then needed months of
research to formulate his argument. However, lack of a transcript does not state good
cause for an untimely filing. State v. Lawson, 8th Dist. No. 84402, 2005-Ohio-880,
reopening disallowed, 2006-Ohio-3839.
{¶3} Moreover, the Supreme Court of Ohio in State v. LaMar, 102 Ohio St.3d 467,
2004-Ohio-3976, 812 N.E.2d 970, and State v. Gumm, 103 Ohio St.3d 162,
2004-Ohio-4755, 814 N.E.2d 861, held that the 90-day deadline for filing must be strictly
enforced. In those cases, the applicants argued that after the court of appeals decided
their cases, their appellate lawyers continued to represent them, and their appellate
lawyers could not be expected to raise their own incompetence. Although the Supreme
Court agreed with this latter principle, it rejected the argument that continued
representation provided good cause. The court then reaffirmed the principle that lack of
effort, imagination, and ignorance of the law do not establish good cause for failure to
seek timely relief under App.R. 26(B).
{¶4} Additionally, Henderson represented himself on appeal. Throughout these
proceedings, Henderson repeatedly submitted filings, such as motions for default
judgment and summary judgment, to obtain his immediate release from prison. The final
brief was his own work, and in his supporting affidavit he states: “I was ineffective
because I failed to raise a winning issue.” Because Henderson represented himself in the
appeal, he is now precluded from arguing ineffective assistance of appellate counsel.
State v. Boone, 114 Ohio App.3d 275, 683 N.E.2d 67 (7th Dist.1996); and State v.
Jackson, 8th Dist. No. 80118, 2002-Ohio-5461. As the United States Supreme Court
noted in Faretta v. California, 422 U.S. 806, 834, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975),
fn. 46, “a defendant who elects to represent himself cannot thereafter complain that the
quality of his own defense amounted to a denial of ‘effective assistance of counsel.’”
{¶5} Accordingly, this court denies the application to reopen.
FRANK D. CELEBREZZE, JR., JUDGE
MARY J. BOYLE, P.J., and
LARRY A. JONES, SR., J., CONCUR