State v. Bell

[Cite as State v. Bell, 2013-Ohio-3802.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
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JOURNAL ENTRY AND OPINION
No. 96446
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STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DEONTA BELL
DEFENDANT-APPELLANT
JUDGMENT:
APPLICATION DENIED
Cuyahoga County Court of Common Pleas
Case No. CR-542463
Application for Reopening
Motion No. 467550
RELEASE DATE: September 3, 2013
ATTORNEY FOR APPELLANT
Deonta Bell, pro se
A 600-014
Marion Correctional Institution
P.O. Box 57
Marion, Ohio 43302
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Alison Foy
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.:
{¶1} Applicant, Deonta Bell, pled guilty and was sentenced on convictions of
burglary and assault in Cuyahoga C.P. Nos. CR-542463 and CR-539985. Applicant,
through counsel, pursued an appeal. We affirmed the trial court’s judgment in State v.
Bell, 8th Dist. Cuyahoga No. 96446, 2011-Ohio-5667. Applicant now seeks to reopen
the appeal pursuant to App.R. 26(B).
{¶2} The appellate judgment was journalized on November 3, 2011. The
application for reopening was not filed until August 19, 2013. This falls well outside the
time limits of App.R. 26(B)(1), which requires applications to be filed within 90 days
after journalization of the appellate judgment. The only exception that would permit us to
review an untimely application is if applicant establishes good cause for filing at a later
time. Id.{¶3} The Supreme Court of Ohio, with regard to the 90-day deadline provided by
App.R. 26(B)(2)(b), has firmly established that
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 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, 1996 Ohio 52, 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.
State v. Lamar, 102 Ohio St.3d 467, 2004-Ohio-3976, 812 N.E.2d 970, ¶ 7-9.
{¶4} “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.” State v. Gumm, 103 Ohio St.3d 162, 2004-Ohio-4755,
814 N.E.2d 861, ¶ 7. Applicant does not address the issue of his untimely application,
and he does not argue that any good cause exists for the late filing. Therefore, the
untimely application for reopening must be denied. State v. Garcia, 8th Dist. Cuyahoga
No. 74427, 2005-Ohio-5796, ¶ 3.
{¶5} Accordingly, this court denies the application to reopen.
MARY EILEEN KILBANE, JUDGE
MARY J. BOYLE, P.J., and
TIM McCORMACK, J., CONCUR