Opinion
No. 107467 No. 107468 No. 107469
09-28-2020
STATE OF OHIO, Plaintiff-Appellee, v. KRILLIAN HOWARD, Defendant-Appellant.
Appearances: Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Frank Romeo Zeleznikar, Assistant Prosecuting Attorney, for appellee. Krillian Howard, pro se.
JOURNAL ENTRY AND OPINION JUDGMENT: APPLICATION DENIED Cuyahoga County Court of Common Pleas
Case Nos. CR-17-618513-A, CR-17-622059-A, and CR-17-623374-A
Application for Reopening
Motion No. 540818
Appearances:
Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Frank Romeo Zeleznikar, Assistant Prosecuting Attorney, for appellee. Krillian Howard, pro se. EILEEN A. GALLAGHER, J.:
{¶ 1} Krillian Howard has filed an application for reopening pursuant to App.R. 26(B). Howard is attempting to reopen the appellate judgment rendered in State v. Howard, 8th Dist. Cuyahoga Nos. 107467, 107468 and 107469, 2019-Ohio- 5113, that affirmed his bindover from the Juvenile Division of the Cuyahoga County Court of Common Pleas and the sentence imposed in State v. Howard, Cuyahoga C.P. Nos. CR-17-618513, CR-17-622059-A and CR-17-623374-A. We decline to reopen Howard's appeal.
{¶ 2} App.R. 26(B)(2)(b) requires that Howard 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, Howard is attempting to reopen the appellate judgment that was journalized on December 12, 2019. The application for reopening was not filed until August 27, 2020, more than 90 days after journalization of the appellate judgment in Howard, supra. Howard claims that: 1) he did not timely receive notice from appellate counsel with regard to the ability to file an App.R. 26(B) application for reopening; 2) detrimental reliance upon the legal advice provided by appellate counsel; 3) inability to access the prison law library to conduct research; and 4) the tolling order issued by the Supreme Court of Ohio on March 27, 2020, that referenced the Covid-19 pandemic, permitted a late filing of the application. Howard has failed to demonstrate any viable showing of good cause for the untimely filing of his application for reopening.
{¶ 4} The arguments raised by Howard, in support of his good cause argument, do not establish a valid basis for the untimely filing of his App.R. 26(B) application for reopening. In State v. Lamar, 8th Dist. Cuyahoga No. 49551, 1985 Ohio App. LEXIS 7284 (Oct. 3, 1985), reopening disallowed (Nov. 15, 1995), Motion No. 63398, this court held that lack of communication with appellate counsel did not show good cause. See also State v. Jarrells, 8th Dist. Cuyahoga No. 99329, 2014-Ohio-4564. Similarly, in State v. White, 8th Dist. Cuyahoga No. 57944, 1991 Ohio App. LEXIS 357 (Jan. 31, 1991), reopening disallowed (Oct. 19, 1994), Motion No. 49174, and State v. Allen, 8th Dist. Cuyahoga No. 65806, 1994 Ohio App. LEXIS 4956 (Nov. 3, 1994), reopening disallowed (July 8, 1996), Motion No. 67054, this court rejected reliance on counsel as showing good cause. Specifically, in State v. Fortson, 8th Dist. Cuyahoga No. 72229, 1998 Ohio App. LEXIS 6104 (Dec. 17, 1998), reopening disallowed (Jan. 23, 2001), Motion No. 18195, 2001 Ohio App. LEXIS 245, this court ruled that an attorney's delay in notification of an appellate decision does not establish good cause. See also State v. Congress, 8th Dist. Cuyahoga No. 102867, 2018-Ohio-4521; State v. Moss, 8th Dist. Cuyahoga Nos. 62318 and 62322, 1993 Ohio App. LEXIS 2491 (May 13, 1993), reopening disallowed (Jan. 16, 1997), Motion No. 75838; State v. McClain, 8th Dist. Cuyahoga No. 67785, 1995 Ohio App. LEXIS 3207 (Aug. 3, 1995), reopening disallowed (Apr. 15, 1997), Motion No. 76811; and State v. Russell, 8th Dist. Cuyahoga No. 69311, 1996 Ohio App. LEXIS 1879 (May 9, 1996), reopening disallowed (June 16, 1997), Motion No. 82351, 1997 Ohio App. LEXIS 2663.
{¶ 5} In addition, this court has consistently held that lack of knowledge or ignorance of the law does not provide sufficient cause for the untimely filing of an application for reopening. State v. Klein, 8th Dist. Cuyahoga No. 58389, 1991 Ohio App. LEXIS 1346 (Apr. 8, 1991), reopening disallowed (Mar. 15, 1994), Motion No. 49260, aff'd, 69 Ohio St.3d 1481, 634 N.E.2d 1027 (1994); State v. Trammell, 8th Dist. Cuyahoga No. 67834, 1995 Ohio App. LEXIS 2962 (July 24, 1995), reopening disallowed (Apr. 22, 1996), Motion No. 70493; State v. Cummings, 8th Dist. Cuyahoga No. 69966, 1996 Ohio App. LEXIS 4565 (Oct. 17, 1996), reopening disallowed (Mar. 26, 1998), Motion No. 92134; and State v. Young, 8th Dist. Cuyahoga Nos. 66768 and 66769, 1994 Ohio App. LEXIS 4634 (Oct. 13, 1994), reopening disallowed (Dec. 5, 1995), Motion No. 66164.
{¶ 6} This court has also repeatedly rejected the claim that limited access to legal materials states good cause for untimely filing. Further, prison riots, lockdowns, and other library limitations have been rejected as constituting good cause. State v. Kaszas, 8th Dist. Cuyahoga Nos. 72547 and 72547, 1998 Ohio App. LEXIS 4227 (Sept. 21, 1988), reopening disallowed (Aug. 14, 2000), Motion No. 16752, 2000 Ohio App. LEXIS 3755; State v. Hickman, 8th Dist. Cuyahoga No. 72341, 1998 Ohio App. LEXIS 1893 (Apr. 30, 1998), reopening disallowed (Dec. 13, 2000), Motion No. 20830; State v. Turner, 8th Dist. Cuyahoga No. 55960 (Nov. 16, 1989), reopening disallowed (Aug. 20, 2001), Motion No. 23221; and State v. Stearns, 8th Dist. Cuyahoga No. 76513, 2000 Ohio App. LEXIS 3161 (July 24, 2000), reopening disallowed (Feb. 14, 2002), Motion No. 27761, 2002 Ohio App. LEXIS 770.
{¶ 7} Finally, Howard's reliance upon the tolling order issued by the Ohio Supreme Court, as a result of the Covid-19 pandemic, does not establish good cause for the late filing of his application for reopening. The tolling order journalized by the Ohio Supreme Court, in In re Tolling of Time Requirements Imposed by Rules Promulgated by the Supreme Court and Use of Technology, 03/27/2020 Administrative Actions, 2020-Ohio-1166, simply tolled the days to accomplish an act from March 9, 2020, through July 30, 2020. The days from December 13, 2019, to March 8, 2020, ran against the 90-day period for filing a timely application for reopening. The days that ran from March 9, 2020, to July 30, 2020, were not chargeable against the 90-day period in which Howard was required to timely file his application for reopening per the tolling order. The tolling order expired on July 30, 2020, so the days chargeable against the 90-day period for timely filing the application for reopening once again began to run on July 31, 2020. The days from July 31, 2020, to August 27, 2020, were chargeable against the 90-day period for filing a timely application for reopening. Thus, Howard filed his application for reopening 115 days after journalization of the appellate judgment subject to reopening:
1) Appellate opinion journalized — December 12, 2019;
2) December 13, 2019, through December 31, 2019 — 19 days ran
3) January 1, 2020, through January 31, 2020 — 31 days ran
4) February 1, 2020, through February 29, 2020 — 29 days ran
5) March 1, 2020, through March 8, 2020 — 8 days ran
6) March 9, 2020, through July 30, 2020 — 144 days tolled
7) July 31, 2020 — 1 day ran
8) August 1, 2020, through August 27, 2020 — 27 days ran
9) Total days before application filed = 115 days.
{¶ 8} The tolling order issued by the Ohio Supreme Court expired on July 30, 2020, which required Harris to file his timely application for reopening no later than August 2, 2020. The tolling order issued by the Ohio Supreme Court did not establish a new 90-day period for the timely filing of the application for reopening, once the tolling order expired. Accordingly, we find that Harris has failed to establish good cause for the untimely filing of his application for reopening.
{¶ 9} Application denied. /s/_________
EILEEN A. GALLAGHER, JUDGE EILEEN T. GALLAGHER, A.J., and
ANITA LASTER MAYS, J., CONCUR