2012 Ohio 5703
Ohio Ct. App.2012Background
- Applicant Jerry Brown sought to reopen this court’s judgment in State v. Brown, 8th Dist. No. 77572 (2001) under App.R. 26(B).
- Brown argued appellate counsel should have raised (a) trial counsel’s inability to examine the victim’s mental state and (b) the victim’s mental state itself as error.
- The application was filed November 9, 2012, about 11 years and six months after journalization, rendering it facially untimely.
- Ohio courts have held lack of funds or counsel does not constitute good cause to extend the 90-day deadline.
- The 90-day deadline is strictly enforced, and any good cause must exist within the filing period, not for an indefinite time.
- Brown failed to include a sworn statement detailing the basis for the ineffective-assistance claim, as required by App.R. 26(B)(2)(d).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of App.R. 26(B) application | Brown argues good cause exists due to recent counsel retention. | Application untimely; deadline strictly enforced. | Untimely on its face; denied. |
| Good cause to excuse late filing | Lack of funds/counsel constitutes good cause. | No good cause under controlling cases. | No good cause; denial appropriate. |
| Length of time since judgment | Earlier failures may be excused by later developments. | 11-year lapse cannot be excused; good cause evaporated. | Excessive delay bars reopening. |
| Mandatory sworn statement under App.R. 26(B)(2)(d) | Not addressed in the application. | Sworn statement required. | Failure to include sworn statement mandates denial. |
Key Cases Cited
- State v. Brooks, 2011-Ohio-1679 (8th Dist. 2011) (lack of funds not good cause for reopening)
- State v. LaMar, 102 Ohio St.3d 467 (Ohio 2004) (90-day deadline for App.R. 26(B) rigid)
- State v. Gumm, 103 Ohio St.3d 162 (Ohio 2004) (same strict deadline principle)
- State v. Davis, 86 Ohio St.3d 212 (Ohio 1999) (good cause must exist within filing period)
- State v. Lechner, 72 Ohio St.3d 374 (Ohio 1995) (sworn statement mandatory for 26(B)(2)(d))
- State v. Tierney, 2002-Ohio-6618 (8th Dist. 2002) (affirmed mandatory sworn statement requirement)