State v. Orr

[Cite as State v. Orr, 2014-Ohio-2384.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96377
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
MAXIE ORR, JR.
DEFENDANT-APPELLANT
JUDGMENT:
APPLICATION DENIED
Cuyahoga County Court of Common Pleas
Case No. CR-541628
Application for Reopening
Motion No. 474040
RELEASE DATE: June 4, 2014
FOR APPELLANT
Maxie Orr, Jr., pro se
Inmate #600-040
Grafton Correctional Institution
2500 South Avon Beldon Road
Grafton, Ohio 44044
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: John Patrick Colan
Mary H. McGrath
Assistant County Prosecutors
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN T. GALLAGHER, J.:
{¶1} Maxie Orr (“Orr”) has filed an application for reopening pursuant to App.R.
26(B). Orr is attempting to reopen the appellate judgment rendered in State v. Orr, 8th
Dist. Cuyahoga No. 96377, 2011-Ohio-6269, which affirmed his convictions on firearm
specifications, attempted murder, aggravated robbery, theft, carrying a concealed weapon,
and discharge of a firearm on or near prohibited premises. Orr maintains his appellate
counsel was ineffective for failing to challenge the imposition of multiple firearm
specifications. The state has opposed the application as being untimely and without
merit. For the reasons that follow, the application is denied.
{¶2} Orr’s application is untimely because it was not filed within 90 days from
journalization of the appellate judgment as required by App.R. 26(B)(1). In order to
permit the court to consider an untimely filed application, App.R. 26(B)(2)(b) requires
Orr to establish a showing of good cause.
{¶3} The Ohio Supreme Court has upheld judgments denying applications for
reopening solely on the basis that the application was not timely filed, and the applicant
had failed to show “good cause for filing at a later time.” State v. Gumm, 103 Ohio St.3d
162, 2004-Ohio-4755, 814 N.E.2d 861, ¶ 7; State v. Lamar, 102 Ohio St.3d 467,
2004-Ohio-3976, 812 N.E.2d 970. This court has found that we need not reach the
merits of an App.R. 26(B) application if the applicant fails to demonstrate good cause for
the delayed filing. State v. McNeal, 8th Dist. Cuyahoga No. 91507, 2009-Ohio-6453, ¶
4. The 90-day deadline for filing must be strictly enforced. State v. Davis, 8th Dist.
Cuyahoga Nos. 97689, 97691 and 97692, 2013-Ohio-5015, ¶ 4, citing Gumm.
{¶4} The appellate judgment that Orr seeks to reopen was journalized on
December 8, 2011. The application for reopening was not filed until April 16, 2014,
well beyond the 90-day deadline for reopening.
{¶5} Orr argues that good cause exists for his delayed filing because he is unversed
in the law, he has limited law resources in prison and because he initially pursued other
remedies in the trial court. Courts have consistently ruled that lack of knowledge or
ignorance of the law does not provide sufficient cause for untimely filing. State v. Klein,
8th Dist. Cuyahoga No. 58389, 1991 Ohio App. LEXIS 1346 (Mar. 28, 1991), reopening
disallowed, Motion No. 249260 (Mar. 15, 1994), aff'd; State ex rel. Dines v. Eighth Dist.
Ct. of Appeals, 69 Ohio St.3d 1481, 634 N.E.2d 1027 (1994); State v. Trammell, 8th Dist.
Cuyahoga No. 67834, 1995 Ohio App. LEXIS 2962 (July 13, 1995), reopening
disallowed, Motion No. 270493 (Apr. 22, 1996); State v. Cummings, 8th Dist. Cuyahoga
No. 69966, 1996 Ohio App. LEXIS 4565 (Oct. 17, 1996), reopening disallowed, Motion
No. 292134 (Mar. 26, 1998); and State v. Young, 8th Dist. Cuyahoga Nos. 66768 and
66769, 1994 Ohio App. LEXIS 4634 (Oct. 13, 1994), reopening disallowed, Motion No.
266164 (Dec. 5, 1995). Ignorance of the law is no excuse.
{¶6} Courts have also repeatedly rejected the claim that limited access to legal
materials states good cause for untimely filing. Being “unlearned in law” and having
limited access to the prison library do not satisfy the good cause requirement of App.R.
26(B). State v. Kitchen, 8th Dist. Cuyahoga No. 69430, 1996 Ohio App. LEXIS 2713(June 27, 1996), reopening disallowed, 1997 Ohio App. LEXIS 2318 (May 22, 1997),
citing State v. Cloud, 8th Dist. Cuyahoga No. 68439, 1995 Ohio App. LEXIS 4331 (Sept.
28, 1995), reopening disallowed, Motion No. 73557 (Oct. 8, 1996).
{¶7} Finally, the excuse that applicant was occupied with other appeals is not
“good cause” for missing the filing deadline. Gumm, 103 Ohio St.3d 162,
2004-Ohio-4755, 814 N.E.2d 861, ¶ 3.
{¶8} Orr has not established good cause for his delayed filing.
{¶9} Additionally, the trial court denied Orr’s motion to merge illegal firearm
specifications, and that order was affirmed on appeal in State v. Orr, 8th Dist. Cuyahoga
No. 100166, 2014-Ohio-501. In resolving that appeal, this court explicitly found that the
issue of merger of the firearm specifications was raised and addressed in his direct appeal.
Id. at ¶ 7. Therefore, this court has already resolved the issue that applicant cites as his
sole basis for reopening.
{¶10} The application for reopening is untimely, without good cause for the delay,
and it fails on the merits.
Accordingly, the application for reopening is denied.
EILEEN T. GALLAGHER, JUDGE
MARY J. BOYLE, A.J., and
MARY EILEEN KILBANE, J., CONCUR