State v. Frazier , 2020 Ohio 993 ( 2020 )

[Cite as State v. Frazier, 2020-Ohio-993.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
BELMONT COUNTY
STATE OF OHIO,
Plaintiff-Appellee,
v.
CLIFF ALFRED CERO FRAZIER,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 16 BE 0040
Motion for Reconsideration
BEFORE:
Cheryl L. Waite, Carol Ann Robb, David A. D’Apolito, Judges.
JUDGMENT:
Denied.
Atty. Dan Fry, Belmont County Prosecuting Attorney, 147-A West Main Street, St.
Clairsville, Ohio 43950, for Plaintiff-Appellee
Cliff Alfred Cero Frazier, Pro se, #728-346, Richland Correctional Institution, 1001
Olivesburg Road, P.O. Box 8107, Mansfield, Ohio 44901-8107.
Dated: March 9, 2020
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PER CURIAM.
{¶1} Appellant Cliff Alfred Cero Frazier has filed a delayed application to reopen
his appeal based on ineffective assistance of appellate counsel. Appellant claims that
counsel failed to contest his sentence, failed during jury selection, and failed to call
character witnesses on his behalf. For the reasons provided, Appellant’s application for
reopening is denied.
Factual and Procedural History
{¶2} Appellant was indicted on April 6, 2016, on one count of felonious assault
in violation of R.C. 2903.11. The charges stemmed from an altercation between Appellant
and Neal Bledsoe (“Bledsoe”). Bledsoe was the ex-fiancé of Appellant’s girlfriend.
Appellant and Bledsoe got into a verbal confrontation outside of the girlfriend’s home that
escalated into a physical altercation. During this altercation, Appellant stabbed Bledsoe
in the neck with a box cutter, lacerating both jugular veins.
{¶3} A jury trial commenced on June 14, 2016. At trial, Appellant raised the
affirmative defenses of self-defense and defense of others. The jury found Appellant
guilty and he was sentenced to eight years in prison.
{¶4} We affirmed Appellant’s conviction in State v. Frazier, 7th Dist. Belmont No.
16 BE 0040, 2017-Ohio-8594. Appellant filed this delayed application to reopen his
appeal. The state did not file a response brief.
Reopening
{¶5} App.R. 26(B)(1) and (2)(b) require applications to reopen based on
ineffective assistance of appellate counsel to be filed within ninety days from
journalization of the decision. App.R. 26(B)(1), (2)(b); State v. Gumm, 103 Ohio St.3d
Case No. 16 BE 0040
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162, 2004-Ohio-4755, 814 N.E.2d 861. The ninety-day requirement applies to all
appellants. State v. Buggs, 7th Dist. Mahoning Nos. 06 MA 28, 07 MA 187, 2009-Ohio-
6628, ¶ 5.
{¶6} If an application for reopening is not filed within the ninety day time period,
an appellant must make a showing of good cause justifying the delay in filing. State v.
Dew, 7th Dist. Mahoning No. 08 MA 62, 2012-Ohio-434. Appellant’s application was filed
on January 17, 2020, over two years after this Court’s decision. Therefore, it is untimely
on its face.
{¶7} Appellant asserts he has good cause for untimely filing his application,
claiming that he was not informed that his appeal had been decided and that he was
transferred to another facility and his legal materials were misplaced. Because he is filing
pro se, Appellant claims he was unaware of the time constraints or of his right to file.
{¶8} An application for reopening is a “collateral postconviction remedy,” and the
state has “no constitutional obligation * * * to provide counsel to those defendants who
file applications under that rule.” Morgan v. Eads, 104 Ohio St.3d 142, 2004-Ohio-6110,
818 N.E.2d 1157, ¶ 22, 26. Thus, there is no right to counsel on an application to reopen
a direct appeal. State v. Adams, 7th Dist. Mahoning No. 08 MA 246, 2012-Ohio-2719,
¶ 84; State v. Keith, 119 Ohio St.3d 161, 2008-Ohio-3866, 892 N.E.2d 912, ¶ 7.
Regardless, a lack of legal knowledge is not a sufficient ground to demonstrate good
cause excusing failure to timely file. Hence, Appellant’s claim that he was prevented from
timely filing his application for reopening because he is filing pro se is unpersuasive. The
absence of good cause for the untimely filing of the application for reopening is a sufficient
basis for denial.
Case No. 16 BE 0040
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{¶9} Likewise, Appellant’s affidavit accompanying the application does not
comply with App.R. 26(B)(2), which provides, in part:
An application for reopening shall contain all of the following:
***
(d) A sworn statement of the basis for the claim that appellate counsel’s
representation was deficient with respect to the assignments of error or
arguments raised pursuant to division (B)(2)(c) of this rule and the manner
in which the deficiency prejudicially affected the outcome of the appeal,
which may include citations to applicable authorities and references to the
record[.]
{¶10} Appellant’s affidavit falls short of compliance with App.R. 26(B)(2)(d)
because the substantive portion merely states, “[t]here are three (3) additional
assignments of errors [sic] that were requested to be raised and were not raise [sic] –
those assignment [sic] are listed in the filing for a re-opening of Appellant’s Appellate
issues.”
{¶11} App.R. 26(B)(2)(e) also requires the applicant to provide the appellate court
with the portions of the record that support the application. State v. Wade, 7th Dist.
Jefferson No. 14 JE 0036, 2017-Ohio-4135, ¶ 6. Appellant fails to provide any portion of
the record on which he relies and his application contains no citation to the record. If an
appellant fails to comply with App.R. 26(B)(2)(e), the application is properly denied. State
v. McNeill, 83 Ohio St.3d 457, 459, 700 N.E.2d 613 (1998). As Appellant has not satisfied
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the necessary requirements, the application is dismissed on procedural grounds and we
need not address the merits of his arguments.
{¶12} Because Appellant failed to establish good cause for the untimely delay in
his filing for reopening of his appeal and because Appellant’s application fails to satisfy
the requirements of App.R. 26(B)(2)(d) and App.R. 26(B)(2)(e), his application for
reopening is denied.
JUDGE CHERYL L. WAITE
JUDGE CAROL ANN ROBB
JUDGE DAVID A. D’APOLITO
NOTICE TO COUNSEL
This document constitutes a final judgment entry.
Case No. 16 BE 0040