State v. Howell

[Cite as State v. Howell, 2011-Ohio-3683.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 92827
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
GEORGE HOWELL
DEFENDANT-APPELLANT
JUDGMENT:
APPLICATION DENIED
Cuyahoga County Common Pleas Court
Case No. CR-510229
Application for Reopening
Motion No. 445701
RELEASE DATE: July 25, 2011
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ATTORNEY FOR APPELLANT
George Howell, pro se
Inmate No. A-561-889
Mansfield Correctional Institution
P.O. Box 788
Mansfield, Ohio 44901
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
By: Mary McGrath
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
EILLEN A. GALLAGHER, J.:
{¶ 1} In State v. Howell, Cuyahoga County Court of Common Pleas
Case No. CR-510229, applicant, George Howell, was found guilty by a jury of:
aggravated robbery with firearm and forfeiture specifications; two counts of
felonious assault with firearm and forfeiture specifications; and having
weapons while under disability with a forfeiture specification. This court
affirmed that judgment in State v. Howell, Cuyahoga App. No. 92827,
2010-Ohio-3403. The Supreme Court of Ohio affirmed that judgment “on the
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authority of State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d
768.” In re Cases Held for the Decision in State v. Hodge, 128 Ohio St.3d 234,
2011-Ohio-228.
{¶ 2} Howell has filed with the clerk of this court an application for
reopening. He asserts that appellate counsel was ineffective and did not
assign as error the trial court’s failure to hold a hearing “to examine the jury
to determine misconduct that would cause a mistrial.” Application at 3. 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 affirming applicant’s conviction was
journalized on July 22, 2010. The application was filed on June 28, 2011,
clearly in excess of the 90-day limit.
{¶ 5} Howell avers that he was unable to file a timely application
because: “Appellate counsel failed to give me a copy of my trial transcripts * *
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* .” Affidavit of George Howell, ¶1. In State v. Day, Cuyahoga App. No.
83138, 2004-Ohio-1449, reopening disallowed, 2010-Ohio-3862, the
applicant’s “assertions regarding his inability to secure transcripts through
his appellate counsel * * * [were] not sufficient to establish good cause for
failure to file a timely application for reopening.” Id. ¶6. Likewise, we must
also conclude that Howell’s inability to gain access to his appellate transcript
does not demonstrate good cause for failing to file a timely application.
{¶ 6} 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; 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, also, State v. Collier (June 11,
1987), Cuyahoga App. No. 51993, reopening disallowed, 2005-Ohio-5797,
Motion No. 370333; State v. Garcia (July 8, 1999), Cuyahoga App. No. 74427,
reopening disallowed, 2005-Ohio-5796, Motion No. 370916.
{¶ 7} Additionally, on direct appeal, this court granted Howell leave to
file a pro se brief. He filed a brief with a supplemental assignment of error.
State v. Howell, Cuyahoga App. No. 92827, 2010-Ohio-3403, ¶1 and 41.
“[T]he courts have repeatedly ruled that res judicata bars an application to
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reopen when the appellant has filed a pro se brief.” (Citations deleted.)
State v. Wright, Cuyahoga App. Nos. 92594 and 95096, 2010-Ohio 243 and
2011-Ohio-733, reopening disallowed, 2011-Ohio-2657, ¶4. The fact that
Howell filed a pro se brief and assignment of error on direct appeal provides a
sufficient basis for denying reopening.
{¶ 8} As a consequence, Howell has not met the standard for reopening.
Accordingly, the application for reopening is denied.
EILEEN A. GALLAGHER, JUDGE
MELODY J. STEWART, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR