State v. Fulton

[Cite as State v. Fulton, 2013-Ohio-2087.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96156
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
ROMEO FULTON
DEFENDANT-APPELLANT
JUDGMENT:
APPLICATION DENIED
Cuyahoga County Court of Common Pleas
Case No. CR-537192
Application for Reopening
Motion No. 464815
RELEASE DATE: May 20, 2013
APPELLANT
Romeo Fulton
Inmate No. 594-228
Mansfield Correctional Institution
P.O. Box 788
Mansfield, Ohio 44901
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
Marc D. Bullard
Assistant County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, P.J.:
{¶1} On May 9, 2013, the applicant, pursuant to App.R. 26(B) and State v.
Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204 (1992), applied to reopen this court’s
judgment in State v. Fulton, 8th Dist. No. 96156, 2011-Ohio-4259, in which this court
affirmed Fulton’s convictions and sentences on multiple counts of aggravated robbery,
robbery, and kidnapping with three-year firearm specifications. Id. at ¶ 23. Fulton
received an aggregate prison sentence of six years. Id. at ¶ 24.
{¶2} Fulton maintains that his appellate counsel was ineffective for not arguing
additional sentencing issues, including challenges to the proportionality and consistency
of the sentence he received with reference to R.C. 2929.11(B). For the following
reasons, this court denies the application to reopen.
{¶3} 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
decision unless the applicant shows good cause for filing at a later time. In the present
case, this court journalized its decision on August 25, 2011, and Fulton filed his
application on May 9, 2013, well beyond the 90-day limitation. Thus, it is untimely on its
face.
{¶4} Fulton does not argue or identify any basis for good cause that would allow
this court to consider his untimely application for reopening.
{¶5} The Supreme Court of Ohio in State v. LaMar, 102 Ohio St.3d 467,
2004-Ohio-3976, 812 N.E.2d 970, and State v. Gumm, 103 Ohio St.3d 162,
2004-Ohio-4755, 814 N.E.2d 861, held that the 90-day deadline for filing must be strictly
enforced. In those cases, the applicants argued that after the court of appeals decided
their cases, their appellate counsel continued to represent them, and their appellate
counsel could not be expected to raise their own incompetence. Although the Supreme
Court agreed with this latter principle, it rejected the argument that continued
representation provided good cause. In both cases, the court ruled that the applicants
could not ignore the 90-day deadline, even if it meant retaining new counsel or filing the
applications themselves. The court then reaffirmed the principle that lack of effort,
imagination, and ignorance of the law do not establish good cause for failure to seek
timely relief under App.R. 26(B). Moreover, this court has denied applications to reopen
even if they are filed only two days late. State v. Gray, 8th Dist. No. 90981,
2009-Ohio-4360.
{¶6} Accordingly, this court denies the application to reopen.
MARY J. BOYLE, PRESIDING JUDGE
SEAN C. GALLAGHER, J., and
EILEEN A. GALLAGHER, J., CONCUR