State v. Davis

[Cite as State v. Davis, 2013-Ohio-5015.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
Nos. 97689, 97691 and 97692
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
EDDIE DAVIS
DEFENDANT-APPELLANT
JUDGMENT:
APPLICATION DENIED
Cuyahoga County Court of Common Pleas
Case Nos. CR-554690, CR-553823, and CR-555904
Application for Reopening
Motion No. 469316
RELEASE DATE: November 13, 2013
FOR APPELLANT
Eddie Davis, pro se
Inmate No. 621-253
Lake Erie Correctional Institution
P.O. Box 8000
Conneaut, Ohio 44030
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Mark D. Bullard
T. Allan Regas
Assistant County Prosecutors
Justice Center, 8th and 9th Floors
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN T. GALLAGHER, J.:
{¶1} On October 24, 2013, the applicant, Eddie Davis, pursuant to App.R. 26(B),
applied to reopen this court’s judgment in State v. Davis, 8th Dist. Cuyahoga Nos. 97689,
97691 and 97692, 2012-Ohio-3951, in which this court affirmed Davis’s sentences for
burglary, theft, and breaking and entering.1 Davis now argues that his appellate counsel
should have argued that the burglary and theft charges were allied offenses and that the
trial court did not comply with H.B. 86 in imposing consecutive sentences. 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
decision unless the applicant shows good cause for filing at a later time. Davis’s October
2013 application was filed approximately 14 months after this court’s decision. Thus, the
application is untimely on its face. In an effort to show good cause, Davis stated the
following in paragraph four of his supporting affidavit: “Appellant[’s] reason for delay is
due to his ongoing health treatment and medications in which the Appellant suffers from
1
In State v. Davis, Cuyahoga C.P. No. CR-554690, Davis pleaded guilty to burglary and grand theft;
the trial court sentenced him to concurrent terms of six years on the burglary charge and 12 months on
the grand theft charge. In State v. Davis, Cuyahoga C.P. No. CR-555904, Davis pleaded guilty to
burglary and theft; the trial court sentenced him to concurrent terms of three years for burglary and six
months for theft. In State v. Davis, Cuyahoga C.P. No. CR-553823, Davis pleaded guilty to breaking
and entering and grand theft; the trial court sentenced him to concurrent terms of 12 months for each
charge. The trial court further ordered that the terms for each case are to be served consecutively for
a total of ten years. The trial court noted Davis’s extensive criminal record and the harm caused the
victims. Appellate counsel argued that the trial court did not make the specific findings under R.C.
seizures due to being shot in the head [sic] which he is prescribed Dilantin.” However,
Davis does not support his claim with any medical records or documentation.
{¶3} In State v. Gilbert, 8th Dist. Cuyahoga No. 90856, 2009-Ohio-607, reopening
disallowed, 2010-Ohio-4103, this court held that a self-serving affidavit pleading medical
incapacity does not show good cause for untimely filing. This court reasoned that it
would be all too easy for an applicant to claim a medical excuse; thus, a medical claim
must be supported by authenticated records substantiating the medical condition in order to
show good cause. State v. Brooks, 8th Dist. Cuyahoga No. 94978, 2011-Ohio-1679,
reopening disallowed 2012-Ohio-915; State v. Austin, 8th Dist. Cuyahoga No. 87169,
2006-Ohio-4120, reopening disallowed, 2012-Ohio-1338; and State v. Kinder, 8th Dist.
Cuyahoga No. 94722, 2011-Ohio-1061, reopening disallowed 2012-Ohio-1339.
Therefore, Davis has not established good cause.
{¶4} Moreover, 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. Because Davis has not established good cause for untimely filing, this court
denies the application.
{¶5} Accordingly, the application for reopening is denied.
2929.14 to impose consecutive sentences.
EILEEN T. GALLAGHER, JUDGE
EILEEN A. GALLAGHER, P.J., and
PATRICIA ANN BLACKMON, J., CONCUR