State v. Huber

[Cite as State v. Huber, 2011-Ohio-3240.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 93923
STATE OF OHIO
APPELLANT
vs.
JOSEPH HUBER
APPELLEE
JUDGMENT:
APPLICATION DENIED
Cuyahoga County Court of Common Pleas
Case No. CR-521813
Motion No. 445331
RELEASED DATE: June 27, 2011
FOR APPELLANT
Joseph Huber, Pro Se
Inmate No. A574800
Trumbull Correctional Institution
P. O. Box 901
Leavittsburg, OH 44430
ATTORNEY FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
By: Daniel T. Van
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, J.:
{¶ 1} Joseph Huber has filed an application for reopening pursuant to
App.R. 26(B). Huber is attempting to reopen the appellate judgment, as
rendered in State v. Huber, Cuyahoga App. No. 93923, 2011-Ohio-62, which
affirmed his conviction for two counts of aggravated robbery, one count of
kidnapping, and one count of attempted felonious assault, but remanded for
resentencing. We decline to reopen Huber’s appeal.
{¶ 2} App.R. 26(B)(2)(b) requires that Huber establish “a showing of
good cause for untimely filing if the application is filed more than 90 days
after journalization of the appellate judgment,” which is subject to reopening.
The Supreme Court of Ohio, with regard to the 90-day deadline as provided
by App.R. 26(B)(2)(b), has firmly established that:
{¶ 3} “We now reject [applicant’s] claim that those excuses gave him
good cause to miss the 90-day deadline in App.R. 26(B). The rule was
amended to include the 90-day deadline more than seven months before
[applicant’s] appeal of right was decided by the court of appeals in February
1994, so the rule was firmly established then, just as it is today. 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.
{¶ 4} “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. [Applicant] could have
retained new attorneys after the court of appeals issued its decision in 1994,
or he could have filed the application on his own. What he could not do was
ignore the rule’s filing deadline. * * * 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 Gumm 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, at ¶7.
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.
{¶ 5} Herein, Huber is attempting to reopen the appellate judgment
that was journalized on January 13, 2011. The application for reopening was
not filed until June 14, 2011, more than 90 days after journalization of the
appellate judgement in State v. Huber, supra. Huber, in an attempt to show
“good cause” for the untimely filing of his application for reopening, argues
“because all of the Appellant’s proper legal documentations are in Trumbull
prison and he is currently in Cuyahoga County Jail pending resentencing and
was not informed immediately of [the] decision.”
{¶ 6} Lack of knowledge or ignorance of the time constraint, applicable
to an application for reopening per App.R. 26(B), does not provide sufficient
cause for untimely filing. State v. Klein (Mar. 28, 1991), Cuyahoga App. No.
58389, reopening disallowed (Mar. 15, 1994), Motion No. 249260, affirmed
(1994), 69 Ohio St.3d 1481; State v. Trammell (July 13, 1995), Cuyahoga App.
No. 67834, reopening disallowed (Apr. 22, 1996), Motion No. 270493; State v.
Travis (Apr. 5, 1990), Cuyahoga App. No. 56825, reopening disallowed (Nov.
2, 1994), Motion No. 251073, affirmed (1995), 72 Ohio St.3d 317. See, also,
State v. Torres, Cuyahoga App. No. 86530, 2007-Ohio-3696, reopening
disallowed (Jan. 3, 2007), Motion No, 390254; State v. Gaston (Feb. 7. 2002),
Cuyahoga App. No. 79626, reopening disallowed (Jan 17,2007), Motion No.
391555. In addition, reliance upon appellate counsel does not establish good
cause for untimely filing an application for reopening. State v. White (Jan.
31, 1991), Cuyahoga App. No. 57944, reopening disallowed (Oct. 19, 1994),
Motion No. 249174; State v. Allen (Nov. 3, 1994), Cuyahoga App. No. 65806,
reopening disallowed (July 8, 1996), Motion No. 267054. See, also, State v.
Moss (May 13, 1993), Cuyahoga App. Nos. 62318 and 62322, reopening
disallowed (Jan. 16, 1997), Motion No. 275838; State v. McClain (Aug. 3,
1995), Cuyahoga App. No. 67785, reopening disallowed (Apr. 15, 1997),
Motion No. 276811; State v. Russell (May 9, 1996), Cuyahoga App. No. 69311,
reopening disallowed (June 16, 1997), Motion No. 282351. Finally, difficulty
in obtaining a transcript or limited access to legal materials does not
establish good cause for the untimely filing of an application for reopening.
State v. Houston, 73 Ohio St.3d 346, 1995-Ohio-317, 652 N.E.2d 1018; State v.
Lawson, Cuyahoga App. No. 84402, 2005-Ohio-880, reopening disallowed
2006-Ohio-3939, Motion No. 374913; State v. Alexander, Cuyahoga App. No.
81529, 2004-Ohio-3861, reopening disallowed 2004-Ohio-3861, Motion No.
353061; and State v. Sanchez (June 9. 1994), Cuyahoga App. No. 62796, reopening
disallowed (Aug. 16, 2001), Motion No. 23717. Herein, Huber has failed to establish
“a showing of good cause” for the untimely filing of his application for
reopening, as premised upon a lack of knowledge, reliance upon his attorney,
difficultly in
{¶ 7} obtaining a transcript, and limited access to legal materials.
{¶ 8} Accordingly, the application for reopening is denied.
KATHLEEN ANN KEOUGH, JUDGE
PATRICIA ANN BLACKMON, P.J., and
MARY J. BOYLE, J., CONCUR