State v. Tomlinson ( 2022 )

[Cite as State v. Tomlinson, 2022-Ohio-2575.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 109614
v. :
JAMES TOMLINSON, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: APPLICATION DENIED
RELEASED AND JOURNALIZED: July 26, 2022
Cuyahoga County Court of Common Pleas
Case No. CR-19-637535-A
Application for Reopening
Motion No. 555189
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Katherine E. Mullin, Assistant Prosecuting
Attorney, for appellee.
Robey & Robey and Gregory S. Robey, for appellant.
CORNELIUS J. O’SULLIVAN, JR., J.:
Relator, James Tomlinson, seeks to reopen his appeal in State v.
Tomlinson, 8th Dist. Cuyahoga No. 109614, 2021-Ohio-1301. In his untimely
application, he claims that appellate counsel was ineffective for not raising an
assignment of error arguing that “[t]he trial court erred when it permitted
identification testimony from a video.” The application is denied for the reasons set
out below.
Background
Tomlinson was charged with attempted murder and other counts
related to events that occurred on March 29, June 10, and July 30, 2018. Tomlinson
was accused of attempting to shoot Carl Willis (“Willis”) and Kenneth Dunnican on
March 29, 2018, and Willis, Dajah Carter, and Tamara Lee on June 10, 2018. A third
shooting incident on July 30, 2018, did not include a victim. When Tomlinson was
arrested, police found drugs on his person. He was charged with drug trafficking
and related counts. He was further alleged to have attempted to intimidate two
witnesses based on recorded jail-house calls.1
Prior to the conclusion of trial, the state dismissed two counts of
intimidation of a crime victim. After the conclusion of trial, Tomlinson was found
not guilty of the attempted murders of Willis and Carter and guilty of the remaining
offenses. He received an aggregate 31-year prison sentence.
Tomlinson appealed his convictions, raising three errors for review:
I. The trial court erred in denying appellant’s motion for relief from
prejudicial joinder.
II. The trial court erred in allowing into evidence the body camera
statements made by the alleged victims who were not present at trial,
1A more detailed recitation of the charges and factual background can be found in
Tomlinson at ¶ 2-22.
in violation of the Confrontation Clause of the Sixth and Fourteenth
Amendments to the United States Constitution.
III. The trial court erred in permitting the state of Ohio to introduce jail
calls not turned over to the defense counsel until five days into trial in
violation of Criminal Rule 16(B).
On April 15, 2021, this court overruled the assigned errors and affirmed Tomlinson’s
convictions.
The instant application was filed by counsel representing Tomlinson
on May 24, 2022. Tomlinson asserts that appellate counsel was ineffective for not
challenging the video identification of him offered by a police officer.
Law and Analysis
Standard for reopening
App.R. 26(B) provides a limited means of asserting a claim of
ineffective assistance of appellate counsel in a two-step procedure. State v. Leyh,
166 Ohio St.3d 365, 2022-Ohio-292, 185 N.E.3d 1075, ¶ 19. The rule contains
various procedural requirements that have been upheld by the Supreme Court of
Ohio. State v. Lamar, 102 Ohio St.3d 467, 2004-Ohio-3976, 812 N.E.2d 970, ¶ 7.
App.R. 26(B)(1) provides that the application must be filed within 90 days of the
date that the appellate decision is journalized. If the application is filed outside of
that deadline, it must include good cause for the untimely filing. App.R. 26(B)(2)(b).
The applicant must also show that there is a “‘genuine issue’ as to
whether he has a ‘colorable claim’ of ineffective assistance of counsel on appeal.”
State v. Spivey, 84 Ohio St.3d 24, 25, 701 N.E.2d 696 (1998). For a timely
application or an untimely application that establishes good cause, an appellate
court must review the application and discern whether it presents a colorable claim
of ineffective assistance of counsel pursuant to the standard announced in
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984). Under this standard:
Appellate counsel’s performance must have been objectively
unreasonable, and there must be a reasonable probability that the
result of the appeal would have been different but for counsel’s
errors. Strickland at 688, 694. Under Strickland, a reasonable
probability is a probability sufficient to undermine confidence in the
outcome of the proceedings. Strickland at 694.
State v. Simpson, 164 Ohio St.3d 102, 2020-Ohio-6719, 172 N.E.3d 97, ¶ 14.
Timeliness and Good Cause
The appellate decision Tomlinson seeks to reopen was journalized on
April 15, 2021. His application was filed on May 24, 2022. To be considered timely,
his application should have been filed within 90 days, but 404 days passed between
these two dates. Therefore, Tomlinson must show good cause sufficient to excuse
his delay in filing.
In attempting to establish good cause, Tomlinson asserts that he had
no post-appellate-decision contact with his appellate attorney and was not advised
about App.R. 26(B). He further asserts that during the COVID-19 Pandemic, he was
“cut off from the outside world, leaving him with no ability to review his option of
re-opening his appeal[,]” and that he only learned of an application to reopen after
his family secured an attorney for him.
It is well established that a lack of knowledge of the availability of the
mechanism for reopening under App.R. 26(B) does not constitute good cause.
One cannot rely on his own alleged lack of legal training to excuse his
failure to comply with the deadline. “Lack of effort or imagination, and
ignorance of the law, * * * do not automatically establish good cause for
failure to seek timely relief” under App.R. 26(B). State v. Reddick
(1995), 72 Ohio St.3d 88, 91, 647 N.E.2d 784. The 90-day requirement
in the rule is “applicable to all appellants,” State v. Winstead (1996), 74
Ohio St.3d 277, 278, 658 N.E.2d 722, * * *.
State v. Farrow, 115 Ohio St.3d 205, 2007-Ohio-4792, 874 N.E.2d 526, ¶ 6. Access
to counsel or a lack of communication with previously assigned appellate counsel
also does not excuse delayed filing. State v. Koreisl, 8th Dist. Cuyahoga No. 90950,
2011-Ohio-6438, ¶ 7. It may be a best practice for appellate counsel to inform an
unsuccessful criminal defendant of the appellate decision and to include
information about App.R. 26(B), but that is not required. The lack of contact with
appellate counsel after an appeal has been decided does not constitute good cause.
Finally, Tomlinson claims that the COVID-19 Pandemic cut him off
from the outside world, precluding him from timely filing his application. The
affidavit attached to the application states that the institution where Tomlinson was
housed was in “lock down for the entire year of 2021 * * *.” He further avers that his
cell block has been locked down at least eight times in the past year. He goes on to
state that during these times, he did not have access to the law library or outside
visitors.
We find that this does not constitute good cause to excuse the
significant delay in this case. Numerous times, this court has rejected claims that
lack of access to legal materials or library limitations constitute good cause for
untimely filing. State v. Wynn, 8th Dist. Cuyahoga No. 103824, 2017-Ohio-9151,
¶ 4, citing State v. Young, 8th Dist. Cuyahoga No. 99752, 2016-Ohio-3165; State v.
Crain, 8th Dist. Cuyahoga Nos. 95012, 95013, 95014, and 95015, 2012-Ohio-1340.
Further, even if we assume that Tomlinson was prevented from filing
his application in 2021 due to restrictions related to the COVID-19 Pandemic, that
only excuses the filing for that year. A condition that inhibits the filings of an
application only excuses filing while the condition exists. State v. Fox, 83 Ohio St.3d
514, 516, 700 N.E.2d 1253 (1998) (“[G]ood cause can excuse the lack of a filing only
while it exists, not for an indefinite period.”). Tomlinson’s application was filed
some five months into 2022, with little in the way of excuse for this delay. He
averred that his cell block has been locked down eight times in the past year but
gives no information on the time or duration of these events. “Consistent
enforcement of the rule’s deadline by the appellate courts in Ohio protects on the
one hand the state’s legitimate interest in the finality of its judgments and ensures
on the other hand that any claims of ineffective assistance of appellate counsel are
promptly examined and resolved.” State v. Gumm, 103 Ohio St.3d 162, 2004-Ohio-
4755, 814 N.E.2d 861, ¶ 7. The application fails to establish good cause for the
untimely filing. Therefore, it must be denied.
Video Identification
The application would also be denied if it were considered on the
merits.
Tomlinson claims that the trial court erred in allowing Detective
Donald Kopchak to testify about his belief that Tomlinson appears in video that
captured one of the shootings. Tomlinson does not support his application with any
citation to case law, statute, or rule of evidence in support of his argument.2 He
further does not sufficiently set forth the grounds on which this proposed
assignment of error rests. Tomlinson claims that this identification goes to the
ultimate issue in the case and intrudes on the province of the jury. Tomlinson has
not set forth any argument that a witness may not testify about the identification of
a person depicted in surveillance video.
In an appeal challenging the sufficiency of the evidence supporting a
criminal conviction, this court relied on witness identification of a defendant in
video footage by a witness that was familiar with the defendant. State v.
Doumbouya, 8th Dist. Cuyahoga No. 101482, 2015-Ohio-1640, ¶ 21. The Tenth
District also rejected a claim of unduly suggestive identification procedures and
found that eyewitnesses could properly review still images taken from surveillance
video to identify a perpetrator of a crime where the witnesses were familiar with the
defendant who was identified as the perpetrator. State v. Glenn-Coulverson, 2017-
Ohio-2671, 90 N.E.3d 243, ¶ 54 (10th Dist.). Similarly, the Second District allowed
identification testimony from a witness regarding still images taken from
2Tomlinson only cites to a case dealing with the standard for abuse of discretion,
Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).
surveillance video in similar circumstances. State v. Shropshire, 2d Dist.
Montgomery No. 28659, 2020-Ohio-6853.
In Shropshire, the testimony established that
the trial court knew that a video depicting the women who damaged
[the victim’s] automobile existed and that [the victim] had viewed the
video. The trial court also realized that [the victim] had been involved
in a relationship with [the defendant], and thus would have been able
to identify [the defendant] upon viewing the video. In our view, under
these circumstances, [the victim’s] video identification was consistent
with an identification sanctioned by Evid.R. 901(B)(4) and (5). As such,
we cannot conclude that the trial court abused its discretion by allowing
[the victim] to identify [the defendant] from the video.
Id. at ¶ 13.
These cases are in line with others where witness identifications using
surveillance video or still images taken from surveillance video were deemed
admissible or relied on by courts in addressing sufficiency or manifest weight issues.
See State v. Tyler, 9th Dist. Summit No. 29225, 2019-Ohio-4661; State v. Alford,
9th Dist. Summit No. 29411, 2020-Ohio-1099; State v. Bunkley, 11th Dist. Lake
No. 2020-L-024, 2020-Ohio-6675; State v. Stults, 6th Dist. Lucas No. L-18-1036,
2019-Ohio-657; State v. Mikolaj, 7th Dist. Mahoning No. 05-MA-157, 2007-Ohio-
1563, ¶ 26 (“[T]he investigating officer saw a security video taken that night and was
able to immediately identify Mikolaj as the perpetrator of this offense, stating that
he could identify Mikolaj because he had known him for twenty years.”); State v.
Wingfield, 8th Dist. Cuyahoga No. 107196, 2019-Ohio-1644.
Det. Kopchak was testifying as a lay witness with a personal history
with Tomlinson. This is similar to the testimony the Second District allowed in
Shropshire. The trial court extensively questioned Det. Kopchak outside the
presence of the jury to determine the extent of the interactions between the detective
and Tomlinson. After being satisfied that Det. Kopchak had sufficient familiarity
with Tomlinson, the court allowed the lay witness identification testimony.
Tomlinson has not pointed to anything that would lead to the conclusions that a
police officer with familiarity with someone depicted in surveillance video may not
offer an opinion as to the identify of that individual in the same manner illustrated
in the cases cited above.
Further, “[t]estimony in the form of an opinion or inference otherwise
admissible is not objectionable solely because it embraces an ultimate issue to be
decided by the trier of fact.” Evid.R. 704. Pursuant to Evid.R. 701, courts have
allowed identification testimony from videos where that evidence is based on the
perception of the witness and is helpful to the determination of the fact in issue.
State v. Hopkins, 7th Dist. Mahoning No. 20 MA 0054, 2021-Ohio-4632, ¶ 50-61,
citing and analyzing State v. Coots, 2015-Ohio-126, 27 N.E.3d 47 (2d Dist.); State v.
Donlow, 7th Dist. Mahoning No. 20 MA 0049, 2021-Ohio-3019; and State v. Bond,
10th Dist. Franklin No. 11AP-403, 2011-Ohio-6828.
Tomlinson has not offered any supported argument that could lead to
the conclusion that had appellate counsel raised this issue, there is any likelihood of
a different result. Tomlinson’s sole proposed assignment of error does not present
a colorable claim of ineffective assistance of counsel.
Application denied.
______________________________
CORNELIUS J. O’SULLIVAN, JR., JUDGE
MICHELLE J. SHEEHAN, P.J., and
EILEEN T. GALLAGHER, J., CONCUR