State v. TerryState v. Terry
JUDGMENT: APPLICATION DENIED
RELEASED AND JOURNALIZED: June 19, 2020
Appearances:
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Katherine E. Mullin, Assistant Prosecuting Attorney, for appellee.
Camilia Terry, pro se.
MARY EILEEN KILBANE, J.:
{¶ 1} Camilia Terry has filed an application for reopening pursuant to
{¶ 2}
[W]e now reject [the applicant‘s] claims that those excuses gave good cause to miss the 90-day deadline in
App.R. 26(B) . * * * Consistent enforcement of the rule‘s deadline by the appellate courts in Ohio protects on the one hand the state‘s legitimate interest in the finality of its judgments and ensures on the other hand that any claims of ineffective assistance of appellate counsel are promptly examined and resolved.Ohio and other states may erect reasonable procedural requirements for triggering the right to an adjudication, Logan v. Zimmerman Brush Co. (1982), 455 U.S. 422, 437, 102 S.Ct. 1148, 71 L.Ed.2d 265, and that is what Ohio has done by creating a 90-day deadline for the filing of applications to reopen. * * * The 90-day requirement in the rule is applicable to all appellants, State v. Winstead (1996), 74 Ohio St.3d 277, 278, 658 N.E.2d 722, and [the applicant] offers no sound reason why he, unlike so many other Ohio criminal defendants, could not comply with that fundamental aspect of the rule.
State v. Gumm, 103 Ohio St.3d 162, 2004-Ohio-4755, 814 N.E.2d 861, ¶ 7. See also State v. Lamar, 102 Ohio St.3d 467, 2004-Ohio-3976, 812 N.E.2d 970; State v. Cooey, 73 Ohio St.3d 411, 653 N.E.2d 252 (1995); State v. Reddick, 72 Ohio St.3d 88, 647 N.E.2d 784 (1995).
{¶ 4} In an attempt to argue good cause for the untimely filing of the application for reopening, Terry argues detrimental reliance upon appointed counsel, the inability to obtain a copy of the appellate opinion rendered by this court with regard to her appeal, lack of knowledge of the deadline for filing a timely
{¶ 5} Reliance upon appellate counsel does not establish good cause for the untimely filing of an application for reopening. State v. White, 8th Dist. Cuyahoga No. 101576, 2017-Ohio-7169; State v. Huber, 8th Dist. Cuyahoga No. 93923, 2011-Ohio-3240; State v. Koreisl, 8th Dist. Cuyahoga No. 90950, 2011-Ohio-6438; State v. Hudson, 8th Dist. Cuyahoga No. 91803, 2010-Ohio-2879. See also State v. Nicholson, 8th Dist. Cuyahoga No. 82825, 2004-Ohio-2394, reopening disallowed, 2006-Ohio-3020 (recognizing that ineffective assistance of appellate counsel is not a sufficient excuse to support an untimely filing for an application to reopen). Additionally, lack of knowledge or ignorance of the time constraint, applicable to an application for reopening per
{¶ 6} Moreover, this court has repeatedly held that difficulty in obtaining the transcript does not constitute good cause. State v. Tomlinson, 8th Dist. Cuyahoga No. 83411, 2005-Ohio-5844; State v. Waller, 8th Dist. Cuyahoga No. 87279, 2007-Ohio-6188. Also, in State v. Towns, 8th Dist. Cuyahoga No. 71244, 1997 Ohio App. LEXIS 4709 (Oct. 23, 1997), reopening disallowed, 2000 Ohio App. LEXIS 2030 (May 4, 2000), the applicant endeavored to show good cause for untimely filing by arguing that appellate counsel was uncooperative and refused to send the applicant any documents concerning the case. This court rejected that argument, ruling that being a layman and experiencing delays in obtaining records related to one‘s conviction are not sufficient basis for establishing good cause for untimely filing of an application for reopening. Id. at ¶ 3. State v. Bussey, 8th Dist. Cuyahoga No. 75301, 1999 Ohio App. LEXIS 5707, 1999 WL 1087494 (Dec. 2, 1999) reopening disallowed, 2000 Ohio App. LEXIS 3614, 2000 WL 1146811 (Aug. 8, 2000); Newburgh Hts. v. Chauncey, 8th Dist. Cuyahoga No. 75465, 1999 Ohio App. LEXIS 3732, 1999 WL 608801 (Aug. 12, 1999), reopening disallowed, 2000 Ohio App. LEXIS 6261, 2000 WL 33126876 (Oct. 20, 2000); State v. Chandler, 8th Dist. Cuyahoga No. 59764, 1992 Ohio App. LEXIS 975, 1992 WL 41856 (Mar. 5, 1992), reopening disallowed, 2001 Ohio App. LEXIS 3624, 2001 WL 931661 (Aug. 13, 2001) — (counsel‘s delays in sending applicant the transcript and refusing access to parts of the transcript did not state good cause).
{¶ 8} Finally, the Supreme Court of Ohio has established that good cause cannot excuse the lack of timely filing for an indefinite period of time:
Good cause can excuse the lack of a filing only while it exists, not for an indefinite period. See State v. Hill (1997), 78 Ohio St.3d 174, 1997-Ohio 293, 677 N.E.2d 337; State v. Carter (1994), 70 Ohio St.3d 642, 1994-Ohio 55, 640 N.E.2d 811. We specifically reject [applicant‘s] claim that once an applicant has established good cause for filing more than ninety days after journalization * * *, it does not matter when the application is filed.
State v. Davis, 86 Ohio St.3d 212, 214, 1999-Ohio-160, 714 N.E.2d 384.
{¶ 9} Herein, the appellate judgment subject to reopening was journalized on October 30, 2014. More than five years have passed since we rendered our appellate opinion. Thus, we find that even if good cause was established, the time for filing an application for reopening has long passed. State v. Williams, 8th Dist. Cuyahoga No. 106266, 2019-Ohio-4780; State v. Churn, 8th Dist. Cuyahoga No. 105782, 2019-Ohio-4052; State v. Marshall, 8th Dist. Cuyahoga No. 87334, 2019-Ohio-1114; State v. McCornell, 8th Dist. Cuyahoga No. 93274, 2015-Ohio-3764.
{¶ 10} Accordingly, the application for reopening is denied.
MARY EILEEN KILBANE, JUDGE
SEAN C. GALLAGHER, P.J., and
ANITA LASTER MAYS, J., CONCUR