State v. Wickline

Jan 24, 1996
No. 95-690
Reporters:
, ,
Before:
Cook
Per Curiam.

Under App.R. 26(B)(2)(b), an application for reopening requires “a showing of good cause for untimely filing if the application is filed more than ninety days after journalization of the appellate judgment.” Here, the appellate judgment was journalized on December 20,1988, but the appellant did not file his application for reopening until November 14, 1994. Thus, Wickline was required to show good cause for the delay.

Wickline seeks to excuse his late filing on the grounds that App.R. 26(B) did not exist at the time the appellate judgment was journalized. However, in State v. Reddick (1995), 72 Ohio St.3d 88, 90, 647 N.E.2d 784, 786, we held that “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).”

Wickline claims that the court of appeals denied him due process by “retroactively” invoking the time limit of amended App.R. 26(B) to bar his claim. While the Ex Post Facto Clause of the United States Constitution applies only to legislative enactments, “due process places similar constraints on a court’s power to apply precedent to cases arising before the precedent was announced.” State v. Webb (1994), 70 Ohio St.3d 325, 330, 638 N.E.2d 1023, 1029, fn. 1; see, also, State v. Garner (1995), 74 Ohio St.3d 49, 57, 656 N.E.2d 623, 633.

Wickline contends that, until Mumahan, supra, motions to reopen an appeal were not an available remedy for ineffective assistance of appellate counsel. That is wrong; as Reddick amply demonstrates, Mumahan did not create a new remedy. But even if it had, retroactive application of Mumahan would not “punish as a crime an act previously committed, which was innocent when done; nor make more burdensome the punishment for a crime, after its commission; nor deprive one charged with crime of any defense available according to law at the time when the act was committed.” Collins v. Youngblood (1990), 497 U.S. 37, 52, 110 S.Ct. 2715, 2724, 111 L.Ed.2d 30, 45. Thus, no issue exists under the Ex Post Facto Clause.

The failure of Wickline’s claim under the Ex Post Facto Clause is fatal to his due process claim. A state court may apply its own precedents retroactively, so long as the application does not amount to an ex post facto law. “A state in defining the limits of adherence to precedent may make a choice for itself between the principle of forward operation and that of relation backward.” Great *372N. Ry. Co. v. Sunburst Oil & Refining Co. (1932), 287 U.S. 358, 364, 53 S.Ct. 145, 148, 77 L.Ed. 360, 366 (Cardozo, J.).

Widdine claims App.R. 26(B)’s good-cause requirement denies him due process, because litigants with valid claims of ineffective appellate counsel are denied an “effective” remedy for the constitutional violation. This amounts to a contention that a litigant’s delay, no matter how long, must be forgiven even though there was no valid reason for the delay. We reject that contention.

Wickline also claims the ninety-day deadline discriminates between rich and poor appellants because the latter will be unable to obtain new counsel in time to discover their former counsel’s errors within ninety days of judgment. But Wickline lacks standing to raise this issue. He has never claimed that he was unable to file a timely application due to indigency. In fact, the court of appeals stated that “Mppellant has been represented by counsel throughout the course of these proceedings.”

In another proposition of law, Wickline asserts his substantive claim of ineffective appellate counsel. The court of appeals never reached that claim, and it is not properly before us. Finally, Wickline complains that the court of appeals ordered eighty-nine pages of his attorney’s ninety-one-page sworn statement to be stricken.1 Because the application was untimely filed, this issue is moot.

The judgment of the court of appeals is affirmed.

Judgment affirmed.

Moyer, C.J., Douglas, Wright, Resnick, F.E. Sweeney, Ppeiper and Cook, JJ., concur.

Notes

. Pursuant to App.R. 26(B)(2)(d), Wickline attached to his application a ninety-one-page affidavit executed by his present counsel. This affidavit argued in detail the merits of certain arguments allegedly forgone by his original appellate counsel in 1988. The court of appeals ordered that eighty-nine pages of this affidavit be stricken.