2018 Ohio 5151
Ohio Ct. App.2018Background
- Zachary Johnson filed an App.R. 26(B) application on July 12, 2018 seeking to reopen this court’s April 12, 2018 decision affirming multiple convictions (aggravated murder, murder, attempted murder, discharging a firearm, weapons-under-disability, felonious assault).
- Johnson argued appellate counsel was ineffective for failing to raise: (1) insufficiency of evidence for prior calculation and design (aggravated murder); (2) indictments failed to provide sufficient notice; and (3) trial counsel was ineffective for not challenging cell-phone location evidence under Carpenter v. United States (decided June 22, 2018).
- The state filed an opposition on July 30, 2018.
- App.R. 26(B) requires reopening applications alleging ineffective appellate assistance to be filed within 90 days of journalization unless good cause is shown; Johnson’s application was filed 91 days after the April 12, 2018 journalization (one day late).
- Johnson did not present any explanation establishing good cause for the late filing.
- The court applied controlling Ohio Supreme Court precedent enforcing the 90‑day deadline strictly and denied the application as untimely.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of App.R. 26(B) application | State: Application is untimely and no good cause shown | Johnson: (implicitly) should be allowed despite one-day late filing | Denied — application untimely; no good cause for late filing |
| Ineffective assistance of appellate counsel — sufficiency of prior calculation/design | State: Not reached because application untimely | Johnson: Appellate counsel should have attacked sufficiency for aggravated murder | Not addressed on merits due to procedural default (untimely) |
| Indictment notice sufficiency | State: Not reached because application untimely | Johnson: Indictments failed to give adequate notice of charges | Not addressed on merits due to procedural default (untimely) |
| Fourth Amendment challenge to cell-phone evidence (Carpenter) | State: Not reached because application untimely | Johnson: Counsel should have raised Carpenter-based Fourth Amendment challenge | Not addressed on merits due to procedural default (untimely) |
Key Cases Cited
- State v. Lamar, 102 Ohio St.3d 467 (Ohio 2004) (strict enforcement of App.R. 26(B) 90-day filing deadline; continued representation by appellate counsel does not excuse delay)
- State v. Gumm, 103 Ohio St.3d 162 (Ohio 2004) (same principle: ignorance or reliance on counsel is not good cause to miss deadline)
- State v. Winstead, 74 Ohio St.3d 277 (Ohio 1996) (courier delay is not good cause; filing rules apply uniformly)