STATE OF OHIO, MAHONING COUNTY v. MILOUS BROWN
CASE NO. 12-MA-118
IN THE COURT OF APPEALS SEVENTH DISTRICT
March 6, 2015
2015-Ohio-793
Hon. Mary DeGenaro, Hon. Cheryl L. Waite, Hon. Carol Ann Robb
CHARACTER OF PROCEEDINGS: Application for Reopening; JUDGMENT: Dismissed
For Petitioner Milous Brown, Pro-se
#603-569
Belmont Correctional Inst.
P.O. Box 540
St. Clairsville, Ohio 43950
For Respondent Paul Gains
Prosecutor
Ralph Rivera
Assistant Prosecutor
21 West Boardman St.
Youngstown, Ohio 44503
{¶1} Appellant Milous Brown has filed a delayed application for reopening of his appeal.1 Brown was indicted on two counts of gross sexual imposition, both third degree felonies, and rape, a felony punishable by life imprisonment. The gross sexual imposition counts were severed and tried separately resulting in convictions. Regarding the rape charge, Brown was convicted of the lesser included offense of gross sexual imposition. This court affirmed the conviction and sentence in State v. Brown, 7th Dist. No. 12 MA 118, 2014-Ohio-4158. Brown filed a petition for postconviction relief in July of 2013 which the trial court denied as untimely and this court affirmed. State v. Brown, 7th Dist. No. 13 MA 176, 2014-Ohio-4008.
{¶2} On January 26, 2015, Brown filed this delayed application for reopening. Brown now argues that his appellate counsel was ineffective for failing to raise “winning issues.” Appellee, State of Ohio filed a response on February 25, 2015.
{¶3}
A defendant in a criminal case may apply for reopening of the appeal from the judgment of conviction and sentence, based on a claim of ineffective assistance of appellate counsel. An application for reopening shall be filed in the court of appeals where the appeal was decided within ninety days from journalization of the appellate judgment unless the applicant shows good cause for filing at a later time.
{¶4} The purpose of reopening an appeal under
{¶5} Pursuant to
{¶6} This court issued its judgment entry and opinion in the direct appeal giving rise to this proceeding on September 16, 2014, and to be considered timely Brown would have had to file his application for delayed reopening on or before December 15, 2014. Brown filed his application on January 26, 2015 and concedes that his filing is untimely. If an application for reopening is not filed within the 90–day period set forth in
{¶7} As good cause, Brown claims that he never received any notice from this Court that his appeal had been denied. Brown states that he discovered his appeal was unsuccessful at the end of December, after the deadline to file a timely application had passed, by putting his name into the law library computer. The clerk‘s docket reflects that a copy of this Court‘s September 16, 2014 was mailed to Brown‘s counsel of record. Even assuming that Brown‘s counsel did not forward a copy of the entry to him, “[s]imple attorney neglect is not a reason for excusing a litigant‘s failure to comply with time requirements.” State ex rel. Lindenschmidt v. Board of Commissioners of Butler County, 72 Ohio St.3d 464, 466, 650 N.E.2d 1343 (1995).
{¶8} Even if Brown were able to establish good cause for the delay, he has failed to raise a genuine issue as to whether he was deprived of the effective assistance of counsel on appeal. Brown states that his appellate counsel was deficient because he “failed to raise winning issues.” Brown faults his appellate counsel for failing to argue in the direct appeal that his trial counsel was ineffective; discussing his trial counsel‘s alleged deficient performance, specifically for the failure to call several alibi witnesses2 during the trial. Brown attached affidavits to the present application of the five witnesses he wanted called at trial. “[G]enerally, an attorney‘s determination of which witnesses to call falls within the realm of trial strategy. Further, a court will not second-guess the trial attorney‘s tactical decisions. It follows that the mere failure to call witnesses does not render counsel‘s assistance ineffective absent a showing of prejudice.” State v. Hector, Montgomery App. No. 18653, 2002-Ohio-1200, 2002 WL 360649, at *4 (internal citations omitted).
{¶9} Brown did not argue any prejudice from trial counsel not calling these witnesses but merely states that the testimony would “further discredit” the testimony of the victim. Brown makes conclusory statements but provides no legal basis as to how there would be a reasonable probability of success on appeal if those witnesses had testified.
{¶10} In conclusion, Brown did not establish good cause for the delay in filing the application for reopening. Further, assuming arguendo that he had, Brown did not establish the existence of a colorable claim of ineffective assistance of appellate counsel. Brown‘s arguments lack merit and his delayed application for reopening is hereby denied.
Waite, J., concurs.
Robb, J., concurs.