Opinion
No. 102299
01-10-2017
STATE OF OHIO PLAINTIFF-APPELLEE v. JAYSON BATTISTE DEFENDANT-APPELLANT
FOR APPELLANT Jayson Battiste, pro se Inmate No. 644971 Belmont Correctional Institution P.O. Box 540 68518 Bannock Road St. Clairsville, Ohio 43950 ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor By: Mary M. Dyczek Assistant County Prosecutor 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. 502415
FOR APPELLANT
Jayson Battiste, pro se
Inmate No. 644971
Belmont Correctional Institution
P.O. Box 540
68518 Bannock Road
St. Clairsville, Ohio 43950
ATTORNEYS FOR APPELLEE
Michael C. O'Malley
Cuyahoga County Prosecutor
By: Mary M. Dyczek
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113 EILEEN T. GALLAGHER, P.J.:
{¶1} Jason Battiste has filed a second App.R. 26(B) application for reopening of the appellate judgment that was rendered by this court in State v. Battiste, 8th Dist. Cuyahoga No. 102299, 2015-Ohio-3586.
{¶2} On September 30, 2016, this court denied Battiste's initial application for reopening on the basis of untimely filing. On December 2, 2016, Battiste filed a second App.R. 26(B) application for reopening.
{¶3} Once again, Battiste has failed to establish good cause for the untimely filing of his application for reopening, which was filed more than 90 days after journalization of the appellate judgment on September 3, 2015. In an attempt to establish good cause for the untimely filing of his second application for reopening, Battiste argues that:
Neither, the Appellate Court, nor Appellate Counsel on appeal informed the Appellant that he had a constitutional right to file for a reopening procedure of the direct appeal or the time frame in which to file said application App.R. 26(B). Because of these facts, the reopening of appeal was not perfected in a timely fashion within the 90-day period, so to present the application to this Court of Appeals.
{¶4} Battiste has failed to establish good cause for the untimely filing of his application for reopening. Reliance on one's attorney and the failure of appellate counsel to inform the defendant as to the availability of App.R. 26(B) do not establish good cause for filing an untimely application for reopening. State v. Pruitt, 8th Dist. Cuyahoga Nos. 86707 and 86986, 2012-Ohio-94; State v. Alt, 8th Dist. Cuyahoga No. 96289, 2012-Ohio-2054. In addition, this court possesses no duty or legal obligation to inform any appellant of the ability to file an App.R. 26(B) application for reopening, once an appeal has been decided. It must also be noted that a lack of legal training, effort, or imagination, and ignorance of the law do not establish "good cause" for failure to seek timely relief pursuant to App.R. 26(B). State v. Farrow, 115 Ohio St.3d 205, 2007-Ohio-4792, 874 N.E.2d 526. Thus, we are required to deny the untimely filed application for reopening. State v. Gumm, 103 Ohio St.3d 162, 2004-Ohio-4755, 814 N.E.2d 861; 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).
{¶5} Of greater significance is the fact that Battiste is not permitted to file a second application for reopening. State v. Twyford, 106 Ohio St.3d 176, 2005-Ohio-4380, 833 N.E.2d 289. There exists no right to file successive applications for reopening under App.R. 26(B). State v. Williams, 99 Ohio St.3d 179, 2003- Ohio-3079, 790 N.E.2d 299. See also State v. Cooey, 99 Ohio St.3d 345, 2003-Ohio-3914, 792 N.E.2d 720; State v. Richardson, 74 Ohio St.3d 235, 658 N.E.2d 273 (1996); State v. Cheren, 73 Ohio St.3d 137, 138, 652 N.E.2d 707 (1995).
{¶6} Accordingly, the application for reopening is denied. /s/_________
EILEEN T. GALLAGHER, PRESIDING JUDGE SEAN C. GALLAGHER, J., and
PATRICIA ANN BLACKMON, J., CONCUR