State v. Holman , 2012 Ohio 5705 ( 2012 )

[Cite as State v. Holman, 2012-Ohio-5705.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
Nos. 93869 and 93870
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
STEPHEN HOLMAN
DEFENDANT-APPELLANT
JUDGMENT:
APPLICATION DENIED
Cuyahoga County Common Pleas Court
Case Nos. CR-500288 and CR-500286
Application for Reopening
Motion No. 459703
RELEASE DATE: December 5, 2012
-i-
FOR APPELLANT
Stephen Holman
Inmate No. 572-063
North Central Correctional Institution
P.O. Box 1812
Marion, Ohio 43301-1812
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Michael E. Jackson
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
KENNETH A. ROCCO, P.J.:
{¶1} On October 26, 2012, the applicant, Stephen Holman, pursuant to App.R. 26(B),
applied to reopen this court’s judgment in State v. Holman, 8th Dist. Nos. 93869 and 93870,
2010-Ohio-4886, in which this court affirmed Holman’s convictions and sentences for various
counts of aggravated theft by deception, securing writings by deception, falsification, receiving
stolen property, telecommunications fraud, and forgery. Holman complains that his
1
appellate counsel was ineffective because he did not argue the exclusion of an expert witness,
and the impossibility of committing these crimes as a loan officer. For the following
2
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 October 2012 application was filed
approximately two years after this court’s decision. Thus, it is untimely on its face. In an
effort to establish good cause, Holman states that in October 2010, his appellate counsel
informed him as follows: this court had affirmed the convictions and sentences; he had a
limited period of time to appeal to the Supreme Court of Ohio; if he desired further legal
1
A jury convicted Holman of these crimes for his role in a “mortgage fraud” scheme involving
two pieces of property.
2
Holman argues that he could not have committed these acts as a loan officer, because on the
date of certain transactions his temporary license as a loan officer had expired and he was no longer
an employee of the involved mortgage broker.
advice, he should retain private counsel or contact the public defender; and his attention to his
case was in his best interest. Holman continues that because he is a layman and indigent, he
sought legal advice in the prison’s library and appealed to the Supreme Court of Ohio, which
denied the appeal in May 2011. Holman then implies that he was then able to pursue his
App.R. 26(B) application.
{¶3} However, this fails to establish good cause for an untimely filing. 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, rejected this argument
and held that the ninety-day deadline for filing must be strictly enforced. In those cases, the
applicants argued that after the courts 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. In both cases, the court
ruled that the applicants could not ignore the ninety-day deadline, even if it meant retaining
new counsel or filing the applications themselves. 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). Thus, Holman’s proffer that he could not
submit his application to reopen until the Supreme Court of Ohio had finished its review does
not state good cause. Furthermore, this court notes that pursuant to Holman’s Exhibit C1 to
his application, he knew in December 2009, the arguments he raises now and that the Supreme
Court of Ohio denied his appeal approximately 15 months ago.
{¶4} Accordingly, this court denies the application to reopen.
__________________________________________
KENNETH A. ROCCO, PRESIDING JUDGE
KATHLEEN ANN KEOUGH, J., and
EILEEN A. GALLAGHER, J., CONCUR