2013 Ohio 1013
Ohio Ct. App.2013Background
- Simmons, proceeding pro se, filed an App.R. 26(B) application to reopen his appeal claiming ineffective appellate counsel.
- The journalized opinion for Simmons II occurred on June 24, 2008; the current reopening petition was filed December 27, 2012.
- Simmons was convicted after a jury trial of corrupting another with drugs with a school specification, trafficking with juvenile specification, tampering with evidence, and possession of drugs, with a composite 15-year sentence.
- On direct appeal, this court (Simmons I) upheld convictions but vacated the sentence and remanded for resentencing under Foster; resentencing imposed the original sentence.
- A further appeal (Simmons II) challenged due process and ex post facto issues, which this court rejected.
- Simmons filed the reopening application asserting untimeliness due to a misspelled case name in the transcript of the 2007 resentencing, but the court denied relief for lack of good cause.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether there is good cause for the untimely reopening application | Simmons argues misspelling of a case name hindered timely filing | State contends no good cause shown for delay | No good cause; application denied |
Key Cases Cited
- State v. Pelfrey, 112 Ohio St.3d 422 (2007-Ohio-256) (case relevant to misnaming transcript; supports no automatics for delay)
- State v. Foster, 109 Ohio St.3d 1 (2006-Ohio-856) (re sentencing framework requiring remand for resentencing)
- Simmons v. State, State v. Simmons, 7th Dist. No. 06 JE 4, 2007-Ohio-1570 (7th Dist. 2007) (reaffirmed convictions but vacated sentence for Foster remand)
- Simmons v. State, State v. Simmons, 7th Dist. No. 07 JE 22, 2008-Ohio-3337 (7th Dist. 2008) (affirmed resentencing ruling on due process/ex post facto grounds)