STATE OF OHIO, Plaintiff-Appellee, v. CHARLES H. DAVENPORT, Defendant-Appellant.
No. 106143
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
October 9, 2019
[Cite as State v. Davenport, 2019-Ohio-4156.]
Cuyahoga County Court of Common Pleas Case No. CR-15-600942-A Application for Reopening Motion No. 528515
JUDGMENT: APPLICATION DENIED
RELEASED AND JOURNALIZED: October 9, 2019
Appearances:
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Gregory J. Ochocki, Assistant Prosecuting Attorney, for appellee.
Charles H. Davenport, pro se.
MARY J. BOYLE, P.J.:
{¶ 1} On May 17, 2019, the applicant, Charles H. Davenport, pursuant to
{¶ 2} On November 4, 2015, Sparks threatened Davenport with a gun, telling Davenport he would shoot him, if he kept coming towards Sparks‘s home. Davenport replied that he would burn Sparks in his sleep if he pulled a gun on him again. In the early morning of November 5, 2015, Davenport set fire to Sparks‘s house, and Sparks died of smoke inhalation. Davenport confessed to the police at the scene of the crime.
{¶ 3} The grand jury indicted Davenport for two counts of aggravated murder, one count of murder, two counts of aggravated arson, and one count of felonious assault. Defense counsel moved to appoint an independent psychological expert to assist him in representing Davenport who had a history of psychiatric and/or psychological treatment. Over the state‘s objection, the trial court granted the motion. After reviewing Davenport‘s mental health and medical history, alcohol and drug history, legal history, and psychological state, the state and defense counsel stipulated to the expert‘s opinion that Davenport was competent to stand trial. However, defense counsel cautioned that the expert opined only on competency; he did not address the issue of sanity.
{¶ 5} Davenport‘s appellate counsel argued only that trial counsel was ineffective for not pursuing an insanity defense. On July 26, 2018, this court overruled the assignment of error because Davenport knew the wrongness of his actions.
{¶ 6}
{¶ 7} For good cause Davenport proffers in his supporting affidavit that after sentencing his trial counsel deceived him by telling him that the judge had waived costs and that Davenport would be able to use the prison commissary. Consistent with that representation, Davenport was able to use the commissary for his first two years in prison. However, on April 16, 2019, the prison notified him of the court cost judgment in the amount of $1,231.57 and that the cashier would place
{¶ 8} The court is not persuaded that these excuses state good cause. Generally, reliance on one‘s counsel does not state good cause for untimely filing. In State v. Mitchell, 8th Dist. Cuyahoga No. 88977, 2009-Ohio-1874, and State v. Alt, 8th Dist. Cuyahoga No. 96289, 2012-Ohio-2054, this court held that the failure to counsel to inform the appellant of this court‘s decision was not good cause. Similarly, ignorance of the court‘s decision does not state good cause. State v. West, 8th Dist. Cuyahoga No. 92508, 2010-Ohio-5576. This court has ruled that an attorney‘s conduct in accepting a retainer to file an
{¶ 9} Delays in obtaining the transcripts also do not state good cause. This court rejected that argument, ruling that “being a layman and experiencing delays in obtaining records related to one‘s conviction are not sufficient bases for establishing good cause for untimely filing of an application for reopening.” (Slip Opinion at 3.) State v. Bussey, 8th Dist. Cuyahoga No. 75301, 2000 WL 1146811 (Aug. 8, 2000); and State v. Chandler, 8th Dist. Cuyahoga No. 59764, 2001 WL 931661 (Aug. 13, 2001) — counsel‘s delays in sending applicant the transcript and refused access to parts of the transcript did not state good cause.
{¶ 10} The Supreme Court of Ohio in State v. LaMar, 102 Ohio St.3d 467, 2004-Ohio-3976, 812 N.E.2d 970, and State v. Gumm, 103 Ohio St.3d 162, 2004-Ohio-4755, 814 N.E.2d 861, held that the 90-day deadline for filing must be strictly enforced. In those cases, the applicants argued that after the court of appeals decided their cases, their appellate lawyers continued to represent them, and their appellate lawyers could not be expected to raise their own incompetence. Although the Supreme Court agreed with this latter principle, it rejected the argument that continued representation provided good cause. In both cases, the court ruled that the applicants could not ignore the 90-day deadline, even if it meant retaining new counsel or filing the applications themselves. The court then reaffirmed the principle that lack of effort, lack of imagination, and ignorance of the law do not establish good cause for failure to seek timely relief under
{¶ 11} Moreover, Davenport‘s claim of ineffective assistance of counsel is not well taken. In order to establish a claim of ineffective assistance of appellate counsel, the applicant must demonstrate that counsel‘s performance was deficient and that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989); and State v. Reed, 74 Ohio St.3d 534, 1996-Ohio-21, 660 N.E.2d 456.
{¶ 13} Specifically, in regard to claims of ineffective assistance of appellate counsel, the United States Supreme Court has upheld the appellate advocate‘s prerogative to decide strategy and tactics by selecting what he thinks are the most promising arguments out of all possible contentions. The court noted: “Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues.” Jones v. Barnes, 463 U.S. 745, 751-752, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983). Indeed, including weaker arguments might lessen the impact of the stronger ones. Accordingly, the court ruled that judges should not second-guess reasonable professional judgments and impose on appellate counsel the duty to raise every “colorable” issue. Such rules would disserve the goal of vigorous and effective advocacy. The Supreme Court of Ohio reaffirmed these principles in State v. Allen, 77 Ohio St.3d 172, 1996-Ohio-366, 672 N.E.2d 638.
{¶ 15} A trial court must render a judgment for court costs against a guilty defendant, even if the defendant is indigent.
{¶ 17} Accordingly, this court denies the application to reopen.
MARY J. BOYLE, PRESIDING JUDGE
SEAN C. GALLAGHER, J., and LARRY A. JONES, SR., J., CONCUR