State v. Diaz

[Cite as State v. Diaz, 2021-Ohio-8.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 108981
v. :
PEDRO DIAZ, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: APPLICATION DENIED
RELEASED AND JOURNALIZED: January 5, 2021
Cuyahoga County Court of Common Pleas
Case No. CR-19-636751-A
Application for Reopening
Motion No. 542398
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Gregory Ochocki, Assistant Prosecuting
Attorney, for appellee.
Pedro Diaz, pro se.
SEAN C. GALLAGHER, J.:
Applicant, Pedro Diaz, seeks to reopen his appeal, claiming that
appellate counsel was ineffective for not raising and arguing the following issues:
I. The appellant suffered ineffective assistance of appellate counsel.
II. The trial court failed to state the required findings at the
sentencing hearing when imposing consecutive sentences and such
findings should have been incorporated in [its] journal entry.
III. The trial court erred by failing to address defendant [sic] of
obligation to Adam Walsh Act (AWA), R.C. 2950 resulting in failure
of trial court compliance with Crim.R. 11.
IV. Appellant was coerced into pleading guilty based on faulty plea
negotiations.
Diaz’s application to reopen State v. Diaz, 8th Dist. Cuyahoga No.
108981, 2020-Ohio-3977, is denied because the application is untimely without any
showing of good cause.
As part of plea agreement that dismissed several serious felony
offenses, Diaz pleaded guilty to three counts of gross sexual imposition, one count
of sexual battery, and one count of attempted gross sexual imposition. He received
a 17-year prison sentence.
Diaz appealed his convictions to this court. He raised a single
assignment of error challenging the imposition of consecutive sentences. The
opinion in his appeal was journalized on August 6, 2020. We overruled the
assignment of error, and affirmed Diaz’s convictions. Id. at ¶ 6.
On November 18, 2020, Diaz filed his application for reopening. The
state timely filed a brief in opposition.
An application for reopening provides a means of asserting a claim of
ineffective assistance of appellate counsel. App.R. 26(B). However, the rule
prescribes a strict 90-day deadline that must be met or an applicant is required to
show why the application could not be filed within the time allowed. App.R. 26(B)(1)
and 26(B)(2)(b). Where an application is untimely filed, the applicant must show
“good cause” to excuse the delay, and the failure to allege good cause is sufficient
grounds for denial. 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.
The failure to establish good cause is sufficient reason to deny the application
without reaching the merits of the claims. State v. Lawrence, 8th Dist. Cuyahoga
Nos. 100371 and 100387, 2019-Ohio-65, ¶ 6, citing State v. Woods, 8th Dist.
Cuyahoga No. 82789, 2014-Ohio-296, ¶ 4, citing State v. McNeal, 8th Dist.
Cuyahoga No. 91507, 2009-Ohio-6453, ¶ 4.
Diaz filed his application on November 18, 2020. The opinion in this
case was journalized on August 6, 2020. 104 days elapsed between the issuance of
the appellate decision and the filing of the application for reopening. Diaz has
exceeded the 90-day period for a timely application, necessitating a showing of good
cause. The application fails to contain any information or argument going to good
cause.
Diaz may assume that simply depositing the application in the prison
mailroom constitutes filing. “Under the plain language of App.R. 26(B)(1), we are
not free to deem [an appellant’s] application filed as of the date he [or she] mailed
it.” State v. Nitsche, 8th Dist. Cuyahoga No. 103174, 2017-Ohio-529, ¶ 6, citing State
ex rel. Tyler v. Alexander, 52 Ohio St.3d 84, 85, 555 N.E.2d 966 (1990) (“filed in the
court from which the case is appealed” does not mean the same as “delivered to the
prison mailroom”). The Supreme Court of Ohio has also rejected the argument that
delays associated with mail delivery constitute good cause. State v. Winstead, 74
Ohio St.3d 277, 278, 658 N.E.2d 722 (1996). See also State v. Harris, 8th Dist.
Cuyahoga No. 104329, 2018-Ohio-839.
Where, as here, an application for reopening is untimely and fails to
contain any arguments going to good cause, the application must be denied. State
v. Glaze, 8th Dist. Cuyahoga No. 105519, 2018-Ohio-4772, ¶ 6, citing State v.
Jarrells, 8th Dist. Cuyahoga No. 99329, 2014-Ohio-4564, ¶ 8, citing Gumm, 103
Ohio St.3d 162, 2004-Ohio-4755, 814 N.E.2d 861; LaMar, 102 Ohio St.3d 467,
2004-Ohio-3976, 812 N.E.2d 970; and State ex rel. Wood v. McClelland, 140 Ohio
St.3d 331, 2014-Ohio-3969, 18 N.E.3d 423, ¶ 13.
Application denied.
SEAN C. GALLAGHER, JUDGE
EILEEN T. GALLAGHER, A.J., and
KATHLEEN ANN KEOUGH, J., CONCUR