Opinion
No. 97084
01-23-2013
STATE OF OHIO PLAINTIFF-APPELLEE v. JUAN BANKS DEFENDANT-APPELLANT
FOR APPELLANT Juan Banks, pro se Inmate No. 603-214 Southern Ohio Correctional Facility ATTORNEYS FOR APPELLEE Timothy J. McGinty Cuyahoga County Prosecutor By: Scott Zarzycki Mary H. McGrath Assistant County Prosecutors
JOURNAL ENTRY AND OPINION
JUDGMENT:
APPLICATION DENIED
Cuyahoga County Common Pleas Court
Case No. CR-546456
Application for Reopening
Motion No. 458344
FOR APPELLANT
Juan Banks, pro se
Inmate No. 603-214
Southern Ohio Correctional Facility
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Scott Zarzycki
Mary H. McGrath
Assistant County Prosecutors
KENNETH A. ROCCO, J.:
{¶1} Juan Banks has filed an application for reopening pursuant to App.R. 26(B). Banks is attempting to reopen the appellate judgment, as rendered in State v. Banks, 8th Dist. No. 97084, 2012-Ohio-2495, which affirmed his conviction for the offense of murder with firearm specifications. We decline to reopen Banks's appeal.
{¶2} App.R. 26(B)(2)(b) requires that Banks establish "a showing of good cause for untimely filing if the application is filed more than 90 days after journalization of the appellate judgment," which is subject to reopening. The Supreme Court of Ohio, with regard to the 90-day deadline as provided by App.R. 26(B)(2)(b), has established that:
* * * 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.State v. Gumm, 103 Ohio St.3d 162, 2004-Ohio-4755, 814 N.E.2d 861, at ¶ 7-8, 10. 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, 1995-Ohio-328, 653 N.E.2d 252; State v. Reddick, 72 Ohio St.3d 88, 1995-Ohio-248, 647 N.E.2d 784.
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. (Emphasis added.)
{¶3} Herein, Banks is attempting to reopen the appellate judgment that was journalized on June 7, 2012. The application for reopening was not filed until September 6, 2012, more than 90 days after journalization of the appellate judgment in Banks. Banks has failed to establish "a showing of good cause" for the untimely filing of his application for reopening. In fact, Banks has not attempted to address the issue of "good cause" vis-a-vis the untimely filing of his application for reopening. Thus, the application for reopening fails on its face. State v. Klein, 8th Dist. No. 58389, 1991 Ohio App. LEXIS 1346 (Mar. 28, 1991), reopening disallowed, Motion No. 49260 (Mar. 15, 1994), aff'd, 69 Ohio St.3d 1481, 634 N.E.2d 1027 (1994); State v. Trammell, 8th Dist. No. 67834, Ohio App. LEXIS (July 13, 1995), reopening disallowed, Motion No. 70493 (Apr. 22, 1996); State v. Travis, 8th Dist. No. 56825, 1990 Ohio App. LEXIS (Apr. 5, 1990), reopening disallowed, Motion No. 51073 (Nov. 2, 1994), aff'd, 72 Ohio St.3d 317, 1995-Ohio-152, 649 N.E.2d 1226. See also State v. Gaston, 8th Dist. No. 79626, 2007 Ohio App. LEXIS 147 (Jan. 17, 2007); State v. Torres, 8th Dist. No. 86530, 2007-Ohio-9.
{¶4} Accordingly, the application for reopening is denied. ________
KENNETH A. ROCCO, JUDGE
MELODY J. STEWART, A.J., and
MARY J. BOYLE, J., CONCUR