State v. Wright , 2011 Ohio 2657 ( 2011 )

[Cite as State v. Wright, 2011-Ohio-2657.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
Nos. 92594 and 95096
STATE OF OHIO
RELATOR
vs.
WILLIAM WRIGHT
RESPONDENT
JUDGMENT:
APPLICATION DENIED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-508029
BEFORE: Jones, P.J., Keogh, J., and E. Gallagher, J.
RELEASED AND JOURNALIZED: May 27, 2011
FOR APPELLANT
William Wright, Pro se
Inmate #561-218
Grafton Correctional Institution
2500 S. Avon Belden Road
Grafton, Ohio 44044
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Diane Smilanick
Assistant Prosecuting Attorney
The Justice Center, 9 Floor
ht
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, J.:
{¶ 1} On May 5, 2011, the applicant, William Wright (“Wright”), pursuant to App.R.
26(B) and State v. Murnahan (1992), 63 Ohio St.3d 60, 584 N.E.2d 1204, applied to reopen
this court’s judgments in State v. Wright, Cuyahoga App. No. 92594, 2010-Ohio-243 (Case 1)
and State v. Wright, Cuyahoga App. No. 95096, 2011-Ohio-733 (Case 2). In Case 1, this
court affirmed Wright’s convictions for four counts of child endangering, but reversed and
remanded for resentencing because the four counts were allied offenses. In Case 2, this court
affirmed the resentencing in which the state merged Counts 2, 3, and 4 into Count 1, and the
trial court reimposed the original sentence of eight years for Count 1. Wright argues that his
appellate lawyers were ineffective for failing to argue, inter alia, the validity of the
indictments, the sufficiency and weight of the evidence, the propriety of the evidence, and the
harshness of the sentence. 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. Wright filed this application
approximately 15 months after the journalization of Case 1. Thus, to the extent that he is
seeking to reopen Case 1, the application is untimely on its face. Wright makes no attempt to
show good cause for his untimely filing.
{¶ 3} Furthermore, res judicata properly bars this application. See, generally, State
v. Perry (1967), 10 Ohio St.2d 175, 226 N.E.2d 104. Res judicata prevents repeated attacks
on a final judgment and applies to all issues which were or might have been litigated. In
Murnahan, the Supreme Court of Ohio ruled that res judicata may bar a claim of ineffective
assistance of appellate counsel unless circumstances render the application of the doctrine
unjust.
{¶ 4} In the present case, Wright filed his own appellate briefs in both Case 1 and
Case 2. Most of his current arguments are variations on the arguments he, his lawyers or
this court previously raised. Furthermore, the courts have repeatedly ruled that res judicata
bars an application to reopen when the appellant has filed a pro se brief. State v. Tyler, 71
Ohio St.3d 398, 1994-Ohio-8, 643 N.E.2d 1150, cert. denied (1995), 516 U.S. 829,116 S.Ct.
98, 133 L.Ed.2d 53; State v. Boone (1996), 114 Ohio App.3d 275, 683 N.E.2d 67; State v.
Barnes (Mar. 13, 1986), Cuyahoga App. No. 50318, reopening disallowed (Mar. 4, 1994),
Motion No. 136464; State v. Williams (Oct. 31, 1996), Cuyahoga App. No. 69936, reopening
disallowed (Apr. 24, 1997), Motion No. 280441; and State v. Larkins (Oct. 8, 1987),
Cuyahoga App. Nos. 52779 and 52780, reopening disallowed (Aug. 19, 1996), Motion No.
268671. In State v. Reddick (1995), 72 Ohio St.3d 88, 90-91, 647 N.E.2d 784, the Supreme
Court of Ohio stated: “Neither Murnahan nor App.R. 26(B) was intended as an open invitation
for persons sentenced to long periods of incarceration to concoct new theories of ineffective
assistance of appellate counsel in order to have a new round of appeals.”
Accordingly, the application for reopening is denied.
LARRY A. JONES, PRESIDING JUDGE
KATHLEEN ANN KEOUGH, J., and
EILEEN A. GALLAGHER, J., CONCUR