State v. Hurt

[Cite as State v. Hurt, 2012-Ohio-4268.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96032
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
WILLIE HURT
DEFENDANT-APPELLANT
JUDGMENT:
APPLICATION DENIED
Cuyahoga County Common Pleas Court
Case No. CR-514257
Application for Reopening
Motion No. 456110
RELEASE DATE: September 14, 2012
-i-
FOR APPELLANT
Willie Hurt
Inmate #563-360
Lorain Correctional Institution
2075 South Avon-Belden Road
Grafton, OH 44044
ATTORNEYS FOR APPELLEE
Willliam D. Mason
Cuyahoga County Prosecutor
By: Diane Smilanick
Assistant County Prosecutor
Justice Center - 8th Floor
1200 Ontario Street
Cleveland, OH 44113
KENNETH A. ROCCO, J.:
{¶1} In State v. Hurt, Cuyahoga C.P. No. CR-514257, applicant, Willie Hurt, pled
guilty to rape and gross sexual imposition. The entry memorializing his plea and
imposing a sentence was journalized on March 19, 2009. On November 17, 2010, Hurt
filed an appeal pro se and this court denied his motion for leave to file notice of appeal
out of rule (instanter) and dismissed the appeal in State v. Hurt, 8th Dist. No. 96032,
Entry Nos. 439452 and 439502 (Nov. 22, 2010).
{¶2} Hurt has filed with the clerk of this court an application for reopening. He
asserts that he was denied the effective assistance of appellate counsel, despite the fact
that he represented himself in his direct appeal. We deny the application for reopening.
As required by App.R. 26(B)(6), the reasons for our denial follow.
{¶3} Initially, we note that App.R. 26(B)(1) provides, in part: “An application for
reopening shall be filed * * * within ninety days from journalization of the appellate
judgment unless the applicant shows good cause for filing at a later time.” App.R.
26(B)(2)(b) requires that an application for reopening include “a showing of good cause
for untimely filing if the application is filed more than ninety days after journalization of
the appellate judgment.”
{¶4} This court’s decision dismissing Hurt’s appeal was journalized on November
22, 2010. The application was filed on June 18, 2012, clearly in excess of the ninety-day
limit. Hurt does not argue or demonstrate good cause for the untimely filing of his
application for reopening. Compare State v. Welch, 8th Dist. No. 95577,
2012-Ohio-3351 (denying an application for reopening as untimely when the applicant
failed to argue or establish good cause under App.R. 26(B)(2)(b)).
{¶5} The Supreme Court has upheld judgments denying applications for reopening
solely on the basis that the application was not timely filed and the applicant failed to
show “good cause for filing at a later time.” App.R. 26(B)(1). See, e.g., State v.
Gumm, 103 Ohio St.3d 162, 2004-Ohio-4755, 814 N.E.2d 861, and State v. LaMar, 102
Ohio St.3d 467, 2004-Ohio-3976, 812 N.E.2d 970. Applicant’s failure to demonstrate
good cause is a sufficient basis for denying the application for reopening. See, e.g.,
State v. Almashni, 8th Dist. No. 92237, 2010-Ohio-898, reopening disallowed,
2012-Ohio-349.
{¶6} Additionally, Hurt represented himself in his direct appeal in Hurt, 8th Dist.
No. 96032. “A defendant who represents himself or herself on direct appeal, however,
may not maintain an application for reopening. State v. Gaston, Cuyahoga App. No.
92242, 2009-Ohio-3080, reopening disallowed, 2009- Ohio-4715.” State v. Effinger, 8th
Dist. No. 93450, 2009-Ohio-5242, ¶ 4.
{¶7} As a consequence, Hurt has not met the standard for reopening.
{¶8} Accordingly, the application for reopening is denied.
_________________________________
KENNETH A. ROCCO, JUDGE
PATRICIA ANN BLACKMON, A.J., and
KATHLEEN ANN KEOUGH, J., CONCUR