No. 94-2056 | Ohio | Apr 26, 1995
The court of appeals held that appellant is required to show good cause why he did not file an application to reopen his appellate judgment, even
App.R. 26(B) took effect on July 1, 1993. Appellant’s application to reopen his appeal was effectively filed nunc pro tunc on August 31, 1993. It is therefore subject to the rule.
App.R. 26(B)(2)(b) requires an application filed more than ninety days after journalization of the appellate judgment sought to be reopened to show good cause for the untimely filing. The judgment appellant seeks to reopen was filed on May 7, 1987. Appellant’s amended application makes no attempt to establish good cause. Therefore, facially, it violates App.R. 26(B)(2)(b).
Appellant argues, however, that due process requires App.R. 33(M) to be invoked. This rule states that amendments to the Rules of Appellate Procedure that took effect on July 1, 1993 govern proceedings brought after that date, “except to the extent that their application in a particular action pending when the amendments take effect would not be feasible or would work injustice, in which case the former procedure applies.” (Emphasis added.) We reject this argument. Appellant’s action was not pending on July 1, 1993.
Appellant also argues that the procedure prescribed in State v. Murnahan (1992), 63 Ohio St.3d 60, 584 N.E.2d 1204, not App.R. 26(B), should apply to him. We agree in part. In Mumahan, we held, in paragraph three of the syllabus, that a person claiming ineffective assistance of appellate counsel could present his claims under App.R. 26 (now App.R. 26[A]) and App.R. 14(B). Former App.R. 26 provided for a motion for reconsideration before the judgment was filed with the clerk for journalization or within ten days after announcement of the court’s decision, whichever was earlier. Former App.R. 14(B) provided for an enlargement of time to do an act “for good cause shown.” Hence, a requirement to show good cause for failure to file a timely claim of ineffective assistance of appellate counsel has existed at least since Mumahan was decided and arguably before, as Mumahan procedure was based on then-extant rules.
We hold, therefore, that the good-cause requirement of App.R. 26(B) succeeds and incorporates the good-cause requirement of Mumahan and former App.R. 14(B). Accordingly, an applicant who seeks to reopen an appellate judgment journalized before July 1,1993 may not simply rely on the fact that App.R. 26(B) did not exist within the ninety days following journalization of the appellate judgment, but must show good cause why he or she did not attempt to invoke the procedures available under former App.R. 26 and 14(B). Neither Mumahan nor App.R. 26(B) was intended as an open invitation for persons sentenced to long
In the present case, appellant made no attempt to show good cause why he did not file an appropriate motion or application for relief for over six years after the appellate judgment he now seeks to reopen was journalized. Accordingly, we hold that he did not comply with App.R. 26(B)(2)(b), and the court of appeals correctly denied his application to reopen his appeal.
Judgment affirmed.