State v. Welch

[Cite as State v. Welch, 2012-Ohio-3351.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95577
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
LEE WELCH
DEFENDANT-APPELLANT
JUDGMENT:
APPLICATION DENIED
Cuyahoga County Common Pleas Court
Case No. CR-529812
Application for Reopening
Motion No. 454708
RELEASE DATE: July 24, 2012
APPELLANT
Lee Welch, Pro Se
No. 590-660
Mansfield Correctional Institution
P.O. Box 788
Mansfield, Ohio 44901
ATTORNEYS FOR APPELLEE
William D. Mason, Esq.
Cuyahoga County Prosecutor
By: Mary McGrath, Esq.
Assistant Prosecuting Attorney
1200 Ontario Street
Cleveland, Ohio 44113
JAMES J. SWEENEY, P.J.:
{¶1} Lee Welch has filed an application for reopening pursuant to App.R. 26(B).
Welch seeks to reopen the appellate judgment rendered in State v. Welch, 8th Dist. No.
95577, 2011-Ohio-3243, which affirmed his conviction for multiple sexual offenses, but
remanded for resentencing. We decline to grant the application for reopening.
{¶2} App.R. 26(B)(2)(b) requires that Welch establish “a showing of good cause
for untimely filing if the application is filed more than 90 days after journalization of the
appellate judgement,” which is subject to reopening. The Supreme Court of Ohio, with
regard to the 90-day deadline provided by App.R.26(B)(2)(b), has firmly established that:
We now reject [the applicant’s] claims that those excuses gave good cause
to miss the 90-day deadline in App. R. 26(B). * * * 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.
Ohio and other states “may erect reasonable procedural requirements for
triggering the right to an adjudication,” Logan v. Zimmerman Brush Co.
(1982), 455 U.S. 422, 437, 102 S.Ct. 1148, 71 L.Ed.2d 265, and that is what
Ohio has done by creating a 90-day deadline for the filing of applications to
reopen. * * *
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, and [the
applicant] offers no sound reason why he — unlike so many other Ohio
criminal defendants — could not comply with that fundamental aspect of
the rule.
(Emphasis added.) State v. Gumm, 103 Ohio St.3d 162, 2004-Ohio-4755, 814 N.E.2d
861, ¶ 7-9. See also State v. Lamar, 102 Ohio St.3d 467, 2004-Ohio-3976, 812 N.E.2d
970; State v. Cooey, 73 Ohio St.3d 411, 1995-Ohio-328, 653 N.E.2d 252; State v.
Reddick, 72 Ohio St.3d 88, 1995-Ohio-249, 647 N.E.2d 784.
{¶3} Welch is attempting to reopen the appellate judgment journalized on June
30, 2011. The application for reopening was not filed until May 2, 2012, more than 90
days after journalization of the appellate judgment in Welch. Welch has failed to argue or
establish any “good cause” under App.R. 26(B)(2)(b) for failing to file his application
within the time limit set by the rule. Gumm, at ¶ 7. See also Lamar. Thus, his
application is untimely.
{¶4} Accordingly, this court denies the application to reopen.
_______________________________________________
JAMES J. SWEENEY, PRESIDING JUDGE
KATHLEEN ANN KEOUGH, J., and
EILEEN ANN GALLAGHER, J., CONCUR