State v. Jarrells

[Cite as State v. Jarrells, 2014-Ohio-4564.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99329
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
ROBERT F. JARRELLS, JR.
DEFENDANT-APPELLANT
JUDGMENT:
APPLICATION DENIED
Cuyahoga County Court of Common Pleas
Case No. CR-11-556216-A
Application for Reopening
Motion No. 476796
RELEASE DATE: October 14, 2014
APPELLANT
Robert F. Jarrells, Jr. #633536
Richland Correctional Institution
1001 Olivesburg Road
Mansfield, Ohio 44901
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Amy Venesile
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.:
{¶1} Robert F. Jarrells, Jr. has filed an application for reopening pursuant to
App.R. 26(B). Jarrells is attempting to reopen the appellate judgment rendered in State
v. Jarrells, 8th Dist. Cuyahoga No. 99329, 2013-Ohio-3813, which affirmed his
convictions for driving while under the influence. For the reasons that follow, the
application to reopen is denied.
{¶2} The appellate judgment was journalized on September 5, 2013. The
application for reopening was not filed until July 17, 2014. This falls 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
[c]onsistent 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.
Ohio and other states “may erect reasonable procedural requirements
for triggering the right to an adjudication,” Logan v. Zimmerman Brush
Co., 455 U.S. 422, 437, 102 S.Ct 1148, 71 L.Ed.2d 265 (1982), 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. Gumm, 103 Ohio St.3d 162, 2004-Ohio-4755, 814 N.E.2d 861, ¶ 7. See also
State v. LaMar, 102 Ohio St.3d 467, 2004-Ohio-3976, 812 N.E.2d 970; State v. Cooey, 73
Ohio St.3d 411, 653 N.E.2d 252 (1995); State v. Reddick, 72 Ohio St.3d 88, 647 N.E.2d
784 (1995).
{¶4} Applicant has failed to establish “good cause” for the untimely filing of his
application for reopening. He argues that good cause exists for his delayed filing
because he did not learn of the decision until he contacted the clerk’s office on April 10,
2014. He maintains he was not notified of the court’s decision until he received a copy
of it on May 15, 2014. The only evidentiary material that applicant offers in support of
when he received notice of the decision is his own affidavit. Applicant cites no case that
has found this constitutes good cause to allow consideration of an untimely application to
reopen, but there is precedent finding it is not good cause.
{¶5} Applicant relies on two decisions from the Sixth District Court of Appeals;
however, both cases found good cause existed for reopening appeals that had been
dismissed because appointed counsel failed to file a brief. E.g., State v. Riley, 6th Dist.
Wood No. WD-03-076, 2006-Ohio-116, ¶ 9; State v. Hammon, 6th Dist. Erie No.
E-97-083, 1999 Ohio App. LEXIS 251 (Feb. 1, 1999).1 In this case, appellate counsel
did file a timely brief, which the court considered before rendering its decision.
1Applicant also relies on State v. Chu, 8th Dist. Cuyahoga Nos. 75583 and
{¶6} To the extent that applicant contends that his counsel failed to communicate
the court’s decision to him and that this should be deemed good cause for consideration
of his untimely application, this court has rejected that argument.
{¶7} It is well settled that “neither misplaced reliance on counsel nor lack of
communication between counsel and appellant provides good cause for a late filing of his
application for reopening.” State v. Gray, 8th Dist. Cuyahoga No. 92646,
2012-Ohio-3565, ¶ 3, citing State v. Alt, 8th Dist. Cuyahoga No. 96289, 2012-Ohio-2054;
State v. Austin, 8th Dist. Cuyahoga No. 87169, 2012-Ohio-1338; State v. Alexander, 8th
Dist. Cuyahoga No. 81529, 2004-Ohio-3861. An applicant’s alleged delayed notice of the
appellate decision does not constitute good cause for an untimely application. Alt, citing
State v. Mitchell, 8th Dist. Cuyahoga No. 88977, 2007-Ohio-6190, reopening disallowed,
2009-Ohio -1874 (“The failure of appellate counsel to notify a defendant-appellant of
the judgment of the court of appeals is not good cause for the untimely filing of an
application for reopening.”); see also State v. Henderson, 8th Dist. Cuyahoga No. 95655,
2013-Ohio-2524, ¶ 2.
{¶8} It is proper to deny applications for reopening solely because they are
untimely filed and without good cause for the delay. Gumm, 103 Ohio St.3d 162,
75689, 2002-Ohio-4422. However, it does not address the issue of what constitutes
good cause pursuant to App.R. 26(B). Id. at ¶ 31. Chu predates the precedent
established in 2004 by the Ohio Supreme Court in Gumm and LaMar that the
90-day deadline applies to all applicants and bars consideration of an untimely
application unless good cause is established.
2004-Ohio-4755, 814 N.E.2d 861; 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 his application for reopening. See, e.g., State v. Almashni, 8th Dist. Cuyahoga
No. 92237, 2010-Ohio-898, reopening disallowed, 2012-Ohio-349. Because the lack of
good cause precludes our consideration of the untimely application, the substantive merits
of the application cannot be addressed. State ex rel. Wood v. McClelland, Slip Opinion
2014-Ohio-3969, ¶ 13.
{¶9} Applicant has not established good cause for filing an untimely application
for reopening.
{¶10} Accordingly, the application for reopening is denied.
MARY EILEEN KILBANE, JUDGE
SEAN C. GALLAGHER, P.J., and
EILEEN T. GALLAGHER, J., CONCUR