2020 Ohio 3278
Ohio Ct. App.2020Background:
- Black was convicted by a jury of rape and kidnapping of his stepdaughter; a separate gross sexual imposition charge resulted in acquittal.
- This court affirmed Black’s convictions in State v. Black, 2019-Ohio-4977, issued December 5, 2019.
- Black filed a pro se App.R. 26(B) application on March 6, 2020 seeking to reopen his appeal for ineffective assistance of appellate counsel, asserting counsel failed to argue prosecutorial misconduct, insufficiency of the evidence, and manifest-weight/inconsistent verdicts.
- The application was filed after the 90-day deadline (due March 4, 2020); Black claims prison-mail delays caused the late filing (affidavits notarized Feb. 25; outgoing mail allegedly not posted until March 2).
- The court held that mail delays and miscalculation are not good cause to excuse untimeliness and that the tolling measures effective March 9, 2020 did not apply to this due date.
- The court also concluded the asserted appellate errors did not present a genuine issue of ineffective assistance and denied the application to reopen.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness / Good cause for late filing of App.R. 26(B) application | State: Application untimely; no good cause for late filing | Black: Prison mail delays and processing caused late filing | Application untimely; prison/mail delays do not constitute good cause; tolling rules inapplicable; denial |
| Prosecutorial misconduct on appeal | State: Not raised by appellate counsel; no genuine ineffective-assistance issue | Black: Counsel should have argued prosecution made inaccurate statements and asked leading questions that deprived him of a fair trial | Court found the claim did not present a genuine issue of ineffective assistance; not persuasive |
| Sufficiency of the evidence | State: Evidence supported convictions; not a viable omitted appellate issue | Black: Insufficient evidence to support convictions | Court found the sufficiency claim lacked arguable merit for reopening |
| Manifest weight / inconsistent verdicts | State: Verdicts were not inconsistent; no arguable appellate error | Black: Convictions were against the manifest weight and verdicts were inconsistent | Court concluded the claim did not raise a genuine ineffective-assistance issue |
Key Cases Cited
- State v. Murnahan, 63 Ohio St.3d 60 (1992) (establishes standards for reopening an appeal under App.R. 26(B))
- State v. Winstead, 74 Ohio St.3d 277 (1996) (courier or mail delays do not constitute good cause to accept an untimely App.R. 26(B) application)