State v. Congress

[Cite as State v. Congress, 2018-Ohio-4521.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 102867
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DRAYSHON CONGRESS
DEFENDANT-APPELLANT
JUDGMENT:
APPLICATION DENIED
Cuyahoga County Court of Common Pleas
Case No. CR-13-579147-A
Application for Reopening
Motion No. 519888
RELEASE DATE: November 5, 2018
FOR APPELLANT
Drayshon Congress
Inmate No. 652486
Richland Correctional Institution
P.O. Box 8107
Mansfield, Ohio 44905
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
By: Anthony T. Miranda
Assistant County Prosecutor
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
TIM McCORMACK, J.:
{¶1} Drayshon Congress has filed an application for reopening pursuant to App.R. 26(B).
Congress is attempting to reopen the appellate judgment rendered in State v. Congress, 8th Dist.
Cuyahoga No. 102867, 2015-Ohio-5264, that affirmed the trial court’s denial of a postconviction
motion to vacate the plea of guilty entered in State v. Congress, Cuyahoga C.P. No.
CR-13-579147-A. We decline to reopen Congress’s appeal.
{¶2} App.R. 26(B)(2)(b) requires that Congress establish “a showing of good cause for
untimely filing if the application is filed more than 90 days after journalization of the appellate
judgment” that 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 established that:
[w]e now reject [the applicant’s] claims that those excuses gave him 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.
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, 653 N.E.2d 252 (1995); State v. Reddick, 72 Ohio St. 3d 88, 647 N.E.2d 784
(1995).
{¶3} Herein, Congress is attempting to reopen the appellate judgment that was
journalized on December 17, 2015. The application for reopening was not filed until August 2,
2018, more than 90 days after journalization of the appellate judgment in Congress, supra.
Congress claims that: 1) he did not timely receive notice from appellate counsel with regard to
the ability to file an App.R. 26(B) application for reopening; 2) detrimental reliance upon the
legal advice provided by appellate counsel; and 3) ignorance of the law. Congress has failed to
demonstrate any viable showing of good cause for the untimely filing of his application for
reopening.
{¶4} The arguments raised by Congress in support of his good cause argument do not
establish a valid basis for the untimely filing of his App.R. 26(B) application for reopening. In
State v. Lamar, 8th Dist. Cuyahoga No. 49551, 1985 Ohio App. LEXIS 7284 (Oct. 3, 1985),
reopening disallowed
(Nov. 15, 1995), Motion No. 63398, this court held that lack of communication with appellate
counsel did not demonstrate good cause. Similarly, in State v. White, 8th Dist. Cuyahoga No.
57944, 1991 Ohio App. LEXIS 357 (Jan. 31, 1991), reopening disallowed (Oct. 19, 1994),
Motion No. 49174, and State v. Allen, 8th Dist. Cuyahoga No. 65806, 1994 Ohio App. LEXIS
4956 (Nov. 3, 1994), reopening disallowed (July 8, 1996), Motion No. 67054, this court rejected
reliance on counsel as showing good cause. Specifically, in State v. Fortson, 8th Dist.
Cuyahoga No. 72229, 1998 Ohio App. LEXIS 6104 (Dec. 17, 1998), reopening disallowed (Jan.
23, 2001), Motion No. 18195, 2001 Ohio App. LEXIS 245, this court held that an attorney’s
delay in notification of an appellate decision does not state good cause. See also State v. Moss,
8th Dist. Cuyahoga Nos. 62318 and 62322, 1993 Ohio App. LEXIS 2491 (May 13, 1993),
reopening disallowed, 1997), Motion No. 75838; State v. McClain, 8th Dist. Cuyahoga No.
67785, 1995 Ohio App. LEXIS 3207 (Aug. 3, 1995), reopening disallowed (Apr. 15, 1997),
Motion No. 76811; and State v. Russell, 8th Dist. Cuyahoga No. 69311, 1996 Ohio App. LEXIS
1879 (May 9, 1996), reopening disallowed (June 16, 1997), Motion No. 82351, 1997 Ohio App.
LEXIS 2663.
{¶5} In addition, this court has 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
App. No. 58389, 1991 Ohio App. LEXIS 1346 (Apr. 8, 1991), reopening disallowed (Mar. 15,
1994), Motion No. 49260, affirmed, 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 24, 1995),
reopening disallowed (Apr. 22, 1996), Motion No. 70493; State v. Cummings, 8th Dist.
Cuyahoga App. No. 69966, 1996 Ohio App. LEXIS 4565 (Oct. 17, 1996), reopening disallowed
(Mar. 26, 1998), Motion No. 92134; and State v. Young, 8th Dist. Cuyahoga Nos. 66768 and
66769, 1994 Ohio App. LEXIS 4634 (Oct. 13, 1994), reopening disallowed (Dec. 5, 1995),
Motion No. 66164.
{¶6} Finally, an application to reopen pursuant to App.R. 26(B) cannot be employed by
Congress to reopen his appeal. App.R.26 (B)(1) states that “[a] defendant in a criminal case may
apply for reopening of the appeal from the judgment of conviction and sentence, based on a
claim of ineffective assistance of appellate counsel.” This application is not an effort to reopen
the appeal of a conviction and sentence. It is an effort to reopen the appeal of a denial of a
motion to withdraw the guilty plea and, thus, is beyond the scope of App.R. 26(B).
{¶7} In State v. Halliwell, 8th Dist. Cuyahoga No. 70369, 1996 Ohio App. LEXIS 5750
(Dec. 19, 1996), reopening disallowed (Jan. 28, 1999), Motion No. 70369, this court held that
App.R. 26(B) does not apply to appeals from an adverse ruling on a motion to vacate a guilty
plea. See also State v. White, 8th Dist. Cuyahoga No. 78190, 2001 Ohio App. LEXIS 5320
(Nov. 29, 2001), reopening disallowed (May 13, 2004), Motion No. 357536; State v. Shurney,
8th Dist. Cuyahoga No. 64670, 1994 Ohio App. LEXIS 896 (Mar. 10, 1994), reopening
disallowed (May 15, 1995), Motion No. 60758. App.R. 26(B) applies only to the direct appeal
of a criminal conviction; it does not apply to subsequent postconviction proceedings, including
motions to vacate sentence and hearings to determine the propriety of guilty pleas. State v.
Loomer, 76 Ohio St. 3d 398, 667 N.E.2d 1209 (1996); State v. Bolton, 8th Dist. Cuyahoga No.
103628, 2017-Ohio-7062; State v. Gaston, 8th Dist. Cuyahoga No. 92242, 2009-Ohio-3080.
{¶8} Accordingly, the App.R. 26(B) application for reopening is denied.
TIM McCORMACK, JUDGE
MARY EILEEN KILBANE, P.J., and
EILEEN T. GALLAGHER, J., CONCUR