Opinion
No. 102299
09-30-2016
STATE OF OHIO PLAINTIFF-APPELLEE v. JAYSON BATTISTE DEFENDANT-APPELLANT
FOR APPELLANT Jayson Battiste, pro se Belmont Correctional Institution P.O. Box 540 St. Clairsville, Ohio 43950 ATTORNEYS FOR APPELLEE Timothy J. McGinty Cuyahoga County Prosecutor By: Maxwell Martin Mary M. Dyczek Assistant County Prosecutors 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113
JOURNAL ENTRY AND OPINION JUDGMENT: APPLICATION DENIED Cuyahoga County Court of Common Pleas
Case No. CR-13-579620-A
Application for Reopening
Motion No. 497564 FOR APPELLANT Jayson Battiste, pro se
Belmont Correctional Institution
P.O. Box 540
St. Clairsville, Ohio 43950
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Maxwell Martin
Mary M. Dyczek
Assistant County Prosecutors
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113 EILEEN T. GALLAGHER, P.J.:
{¶1} Jayson Battiste has filed an application for reopening pursuant to App.R. 26(B). Battiste is attempting to reopen the appellate judgment rendered in State v. Battiste, 8th Dist. Cuyahoga No. 102299, 2015-Ohio-3586, that affirmed his conviction and sentence for the offense of sexual battery. We decline to reopen Battiste's appeal.
{¶2} App.R. 26(B)(2)(b) requires that Battiste establish "a showing of good cause for untimely filing if the application is filed more than 90 days after journalization of the appellate judgment" that is subject to reopening. The Supreme Court of Ohio, with regard to the 90-day deadline provided by App.R. 26(B)(2)(b), has established that
[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.(Emphasis added.) 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).
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.
{¶3} Herein, Battiste is attempting to reopen the appellate judgment that was journalized on September 3, 2015. The application for reopening was not filed until June 22, 2016, more than 90 days after journalization of the appellate judgment in Battiste, supra. Battiste has failed to argue any showing of good cause for the untimely filing of his application for reopening. It must also be noted that Battiste has failed to comply with App.R. 26(B)(2)(d), which mandates that the applicant must attach to the application for reopening "a sworn statement of the basis for the claim that appellate counsel's representation was deficient." State v. Doles, 75 Ohio St.3d 604, 665 N.E.2d 197 (1996); State v. Lechner, 72 Ohio St.3d 374, 650 N.E.2d 449 (1995); State v. Bates, 8th Dist. Cuyahoga Nos. 97631, 97632, 97633, and 97634, 2015-Ohio-4176.
{¶4} Accordingly, the application for reopening is denied. /s/_________
EILEEN T. GALLAGHER, PRESIDING JUDGE SEAN C. GALLAGHER, J., and
PATRICIA ANN BLACKMON, J., CONCUR