State v. Reddy ( 2011 )

[Cite as State v. Reddy, 2011-Ohio-2144.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 92924
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
JOSEPH REDDY
DEFENDANT-APPELLANT
JUDGMENT:
APPLICATION DENIED
Cuyahoga County Common Pleas Court
Case No. CR-505854
Application for Reopening
Motion No. 442674
RELEASE DATE: May 3, 2011
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-i-
FOR APPELLANT
Joseph Reddy, Pro Se
Inmate No. 562-809
Trumbull Correctional Institution
P.O. Box 901, 5701 Burnett Road
Leavittsburg, Ohio 44430
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
By: Pinkey S. Carr
Mahmoud Awadallah
Thorin O. Freeman
Assistant County Prosecutors
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
KENNETH A. ROCCO, J.:
{¶ 1} On March 10, 2011, the applicant, Joseph Reddy, pursuant to
App.R. 26(B), applied to reopen this court’s judgment in State v. Reddy,
Cuyahoga App. No. 92924, 2010-Ohio-5759, in which this court modified
Reddy’s conviction from aggravated murder to murder, vacated his sentence,
and remanded for resentencing. Reddy asserts that his appellate counsel
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was ineffective for not arguing that because the conviction for aggravated
murder was not supported by sufficient evidence, the case should have been
remanded for a new trial so that the lesser included offense of voluntary
manslaughter may have been considered.1 On March 17, 2011, the State of
Ohio filed its brief in opposition. For the following reasons, this court denies
the application to reopen.
{¶ 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. Reddy filed his application more than 100 days after this
court journalized its decision on November 24, 2010. Thus, it is untimely on
its face.
{¶ 3} Reddy endeavors to show good cause by arguing that he and his
lawyer were unaware of the preclusive effect this court’s initial opinion would
have on subsequent appeals. Originally, this court issued its decision on
August 26, 2010. On remand, the trial court resentenced Reddy, and he
appealed. State v. Reddy, Cuyahoga County Court of Appeals Case No.
1
The evidence at the bench trial showed that Reddy and his mother had a contentious and
violent relationship. Early on the morning of December 24, 2007, Reddy and his mother quarreled;
she ordered him to leave her house. When he refused to leave, she forced her way into his room and
threatened him with a dagger. Reddy punched her until she dropped the dagger, and then he choked
her to death.
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95814. In this appeal Reddy’s lawyer raised the voluntary manslaughter
issue. However, in December 2010, the attorney wrote to Reddy and
expressed his concern that the 95814 appeal may be limited to issues
concerning the resentencing only, and that the court might not consider the
voluntary manslaughter issue; thus, Reddy may have to pursue the matter as
a claim for ineffective assistance of appellate counsel.
{¶ 4} Reddy still had two months to file his application timely from the
November 24, 2010 opinion. 2 His failure to do so renders his application
untimely. As the Supreme Court of Ohio ruled 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, 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 counsels continued to
represent them, and their appellate counsels 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
2
On September 3, 2010, Reddy filed a pro se App.R. 26(A) motion for reconsideration.
This court granted the motion and vacated its August 26, 2010 opinion. The court then issued the
November 24, 2010 opinion. The two opinions are substantially the same, reaching the same result,
but the court did elaborate its reasoning for some of Reddy’s pro se arguments.
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ignore the 90-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 complying with this fundamental aspect of the rule.
{¶ 5} Moreover, 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 State v. Murnahan
(1992), 63 Ohio St.3d 60, 584 N.E.2d 1204, the supreme court ruled that res
judicata may bar a claim of ineffective assistance of appellate counsel unless
circumstances render the application of the doctrine unjust. 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.
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{¶ 6} In the present case, Reddy filed his own appellate brief on March
26, 2010, before oral argument and raised seven assignments of error upon
which this court ruled. Reddy’s seventh assignment of error raised the
involuntary manslaughter issue: “Trial court abused its discretion in refusing
to consider lesser degree of homicide in violation of appellant’s right to due
process as guaranteed by the Fifth and Fourteenth Amendments of the
United States Constitution and Ohio Constitution.” This court rejected this
argument as follows: “Although Reddy argues specifically that the trial court
committed reversible error by failing to consider convicting him of voluntary
manslaughter, we have already found that the evidence in the record, while
insufficient for aggravated murder, was sufficient to convict Reddy of murder.
We presume the trial court in reaching a verdict considered all lesser and
included offenses as well as inferior degree offenses unless the record shows
otherwise.” Res judicata properly bars Reddy’s argument because, he has
already raised it, and the court has considered it and overruled it.
{¶ 7} Accordingly, the application for reopening is denied.
_____________________________________
KENNETH A. ROCCO, JUDGE
MARY J. BOYLE, P.J., and
COLLEEN CONWAY COONEY, J., CONCUR