2015 Ohio 3764
Ohio Ct. App.2015Background
- Voltaire McCornell pleaded guilty to felonious assault, domestic violence, intimidation, and two counts of endangering children; trial court imposed a total 13-year sentence.
- On direct appeal this court found the trial court made the necessary findings for consecutive sentences but failed to impose a specified period of postrelease control and remanded for resentencing.
- McCornell filed an App.R. 26(B) application (May 2015) seeking to reopen his appeal, claiming appellate counsel was ineffective for not arguing that felonious assault and domestic violence were allied offenses of similar import.
- The application was filed approximately five years after this court’s decision; App.R. 26(B) requires such applications within 90 days of journalization unless good cause is shown.
- McCornell had repeatedly raised the allied-offense issue in the trial court since July 2012, but the appellate court found that this ongoing trial-court activity did not explain the multi-year delay in filing the App.R. 26(B) motion.
- The court denied the application as untimely, concluding McCornell failed to show good cause for late filing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of App.R. 26(B) application | Appellee (State) argues application is untimely; App.R.26(B) requires filing within 90 days | McCornell contends trial-court delay in ruling on allied-offense claims caused the late filing and shows good cause | Denied: application untimely; repeated trial-court filings since 2012 do not excuse a 3–5 year delay and McCornell failed to show good cause |
| Merits: Allied-offense claim (ineffective assistance of appellate counsel) | State did not file brief opposing reopening; additionally earlier appeals and res judicata bar some allied-offense arguments | McCornell asserts appellate counsel should have argued felonious assault and domestic violence were allied offenses | Court did not reach merits because application was denied as untimely; prior appellate decision also noted res judicata on the allied-offense argument on subsequent appeal |
Key Cases Cited
- State v. Murnahan, 63 Ohio St.3d 60 (1992) (standard for reopening an appeal under App.R. 26[B] and ineffective assistance on appeal)
- State v. Davis, 86 Ohio St.3d 212 (1999) (delay in filing App.R. 26[B] applications: good cause cannot be excused indefinitely)
- State v. Fox, 83 Ohio St.3d 514 (1998) (good cause for late filing only excuses delay while it exists; it does not permit indefinite delay)