State v. McCornell

[Cite as State v. McCornell, 2015-Ohio-3764.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 93274
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
VOLTAIRE McCORNELL
DEFENDANT-APPELLANT
JUDGMENT:
APPLICATION DENIED
Cuyahoga County Court of Common Pleas
Case No. CR-09-520113
Application for Reopening
Motion No. 485641
RELEASE DATE: September 15, 2015
FOR APPELLANT
Voltaire McCornell, pro se
Inmate No. 564-010
Marion Correctional Institution
P.O. Box 57
Marion, Ohio 43301
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Diane Smilanick
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
SEAN C. GALLAGHER, P.J.:
{¶1} On May 15, 2015, the applicant, Voltaire McCornell, pursuant to App.R.
26(B) and State v. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204 (1991), applied to
reopen this court’s judgment in State v. McCornell, 8th Dist. Cuyahoga No. 93274,
2010-Ohio-3086, in which this court affirmed in part, reversed in part and remanded for
further proceedings. McCornell had pleaded guilty to felonious assault, domestic
violence, intimidation, and two counts of endangering children; the trial judge had
sentenced him to a total of 13 years. On appeal this court ruled that the trial court did
make the necessary findings for imposing consecutive sentences, but erred in not
imposing a specified period of postrelease control; this court remanded for a proper
sentencing.1 McCornell now claims that his appellate counsel should have argued that
felonious assault and domestic violence were allied offenses. The state of Ohio never
filed a brief in opposition to the application to reopen. For the following reasons, this
court denies the application.
{¶2} App.R. 26(B)(1) and (2)(b) require applications claiming ineffective
assistance of appellate counsel to be filed within 90 days from journalization of the
1After the trial court’s resentencing, McCornell appealed again, and his appellate counsel
argued that the trial court committed plain error by sentencing and resentencing McCornell for allied
offenses. This court rejected that argument because he had not raised that issue during the first
appeal and res judicata barred such an argument. State v. McCornell, 8th Dist. Cuyahoga No. 97406,
2012-Ohio-2503.
decision unless the applicant shows good cause for filing at a later time. The May 2015
application was filed approximately five years after this court’s decision. Thus, it is
untimely on its face. In an effort to establish good cause, McCornell says that he raised
the allied offense issue with the trial court but it did not respond until he had filed a writ
of procedendo to compel a ruling. A review of the docket in State v. McCornell,
Cuyahoga C.P. No. CR-09-520113-A, shows that he has repeatedly raised the allied
offense issue with the trial court since July 2012. Thus, any delay with his most recent
trial court filings does not explain a three- to five-year delay in filing an App.R. 26(B)
application and does not show good cause for untimely filing. In State v. Davis, 86 Ohio
St.3d 212, 214, 1999-Ohio-160, 714 N.E.2d 384, the Supreme Court of Ohio addressed a
similar long lapse of time in filing the App.R. 26(B) application and ruled: “Even if we
were to find good cause of earlier failures to file, any such good cause ‘has long since
evaporated. Good cause can excuse the lack of a filing only while it exists, not for an
indefinite period.’ State v. Fox, 83 Ohio St.3d 514, 516, 1998-Ohio-517, 700 N.E.2d
1253, 1254.”
{¶3} Accordingly, this court denies the application to reopen.
SEAN C. GALLAGHER, PRESIDING JUDGE
PATRICIA ANN BLACKMON, J., and
ANITA LASTER MAYS, J., CONCUR