Opinion
No. 100371 No. 100387
01-08-2019
STATE OF OHIO PLAINTIFF-APPELLANT AND CROSS-APPELLEE v. HOWARD E. LAWRENCE, IV DEFENDANT-APPELLEE AND CROSS-APPELLANT
FOR APPELLEE AND CROSS-APPELLANT Howard E. Lawrence, IV Inmate No. 643726 Ohio State Penitentiary 878 Coitsville-Hubbard Road Youngstown, Ohio 44505 ATTORNEYS FOR APPELLANT AND CROSS-APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor By: Kevin R. Filiatraut Assistant County Prosecutor Justice Center, 8th Floor 1200 Ontario Street Cleveland, Ohio 44113
JOURNAL ENTRY AND OPINION JUDGMENT: APPLICATION DENIED Cuyahoga County Court of Common Pleas
Case No. CR-13-570740
Application for Reopening
Motion No. 522583 FOR APPELLEE
AND CROSS-APPELLANT Howard E. Lawrence, IV
Inmate No. 643726
Ohio State Penitentiary
878 Coitsville-Hubbard Road
Youngstown, Ohio 44505 ATTORNEYS FOR APPELLANT
AND CROSS-APPELLEE Michael C. O'Malley
Cuyahoga County Prosecutor
By: Kevin R. Filiatraut
Assistant County Prosecutor
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113 EILEEN A. GALLAGHER, J.:
{¶1} Applicant, Howard E. Lawrence, IV, seeks to reopen the consolidated appeals in State v. Lawrence, 8th Dist. Cuyahoga Nos. 100371 and 100387, 2014-Ohio-4797. He claims that appellate counsel was ineffective for failing to ensure that Lawrence's pro se assignments of error were addressed and in failing to argue that Lawrence's speedy trial rights were violated. We deny the application to reopen.
{¶2} As previously recited by this court in the direct appeal, Lawrence was charged with numerous crimes related to a shooting that occurred on December 15, 2012. Id. at ___ 2. He was convicted of aggravated robbery, felonious assault and having weapon while under disability for which he received a 21-year prison sentence. Id. at ___ 8-9. The state appealed a portion of the sentence imposed and Lawrence filed a later notice of appeal raising three assignments of error. Id. at ___ 11. This court consolidated the appeals for disposition.
{¶3} This court overruled Lawrence's three assignments of error but sustained the assigned error raised by the state and remanded the case to the trial court to impose sentence on multiple firearm specifications and for correction of the record. Id. at ___ 17, 37.
{¶4} On November 25, 2014, Lawrence filed the first of two motions for extension of time to file an application for reopening pursuant to App.R. 26(B). The second was filed on February 9, 2015. This court denied the second motion on February 11, 2015.
{¶5} On November 1, 2018, four years after the appellate decision was issued, Lawrence filed an application for reopening. The state filed a brief opposing the application on November 29, 2018.
{¶6} App.R. 26(B) provides a means to address claims of ineffective assistance of appellate counsel. The rule itself specifies that applications must be filed within 90 days of the date the appellate decision is journalized. App.R. 26(B)(1). The Supreme Court of Ohio has specified that this deadline is to be strictly enforced. State v. LaMar, 102 Ohio St.3d 467, 2004-Ohio-3976, 812 N.E.2d 970; State v. Gumm, 103 Ohio St.3d 162, 2004-Ohio-4755, 814 N.E.2d 861. Applications filed outside of that deadline must present good cause for the untimely submission. App.R. 26(B)(1) and (B)(2)(b). The failure to adequately establish good cause is sufficient reason to deny the application. State v. Woods, 8th Dist. Cuyahoga No. 82789, 2014-Ohio-296, ¶ 4, citing State v. McNeal, 8th Dist. Cuyahoga No. 91507, 2009-Ohio-6453, ¶ 4.
{¶7} Lawrence's application was filed four years after the appellate decision was journalized in his direct appeal. It is facially untimely. Therefore, he must establish good cause for the untimely filing.
{¶8} In an effort to establish good cause for the untimely filing, Lawrence advances a single argument — he asserts that the 90-day deadline is tolled because this court failed to address all assignments of error in the direct appeal. He states:
In the instant case, the ninety-day deadline is tolled due to the fact that, as a matter of law, the October 30, 2014 Decision does not and will not constitute a final appealable order until the four pending supplemental assignments of error are decided by this Court in compliance with App.R. 12(A)(1)(c) as mandated by the Ohio Supreme Court's binding precedence in State v. Evans, 113 Ohio St.3d 100, 105, 2007-Ohio-861[, 863 N.E.2d 113].
{¶9} App.R. 12(A)(1)(c) provides, "[o]n an undismissed appeal from a trial court, a court of appeals shall do all of the following: * * * Unless an assignment of error is made moot by a ruling on another assignment of error, decide each assignment of error and give reasons in writing for its decision." However, Lawrence's pro se assignments of error were properly ignored by this court where he filed his brief when he was represented by counsel.
{¶10} Ohio does not recognize hybrid representation and it is well settled that a defendant has no right to representation by counsel and to act simultaneously as his own counsel. State v. Westley, 8th Dist. Cuyahoga No. 97650, 2012-Ohio-3571, ¶ 14, citing State v. Thompson, 33 Ohio St.3d 1, 6, 514 N.E.2d 407 (1987), citing McKaskle v. Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984).
{¶11} This court has previously disregarded assignments of error that were raised in a pro se brief that was filed when the appellant was also represented by counsel. State v. Young, 8th Dist. Cuyahoga No. 102202, 2015-Ohio-2862, ¶ 12-14. See also State v. Miller, 2017-Ohio-961, 86 N.E.3d 695, ¶ 3 (8th Dist.), fn. 1 ("Miller was represented by appointed counsel, and therefore, the arguments advanced in the pro se supplemental brief are disregarded.").
{¶12} In the present case, Lawrence had appointed counsel to represent him on appeal. Counsel filed a brief raising three assignments of error that were addressed by this court. The four pro se assignments of error raised by Lawrence were properly ignored. App.R. 12(A)(1)(c) only applies to errors that are properly raised and supported on appeal. Lawrence's pro se assignments of error were not properly raised where he was represented by counsel.
This court recognizes that Lawrence was granted leave by this court to submit a supplemental brief, but this court's decision to ignore his pro se filings is in line with the prevailing law in Ohio that one is not entitled to hybrid representation.
{¶13} Even assuming that this court did not properly rule on all assignments of error, that does not extend the time for filing an application for reopening. In State v. Jennings, 69 Ohio St.2d 389, 433 N.E.2d 157 (1982), the Ohio Supreme Court reversed a decision of an appellate court where it failed to rule on all assigned errors. Similarly, in Evans, 113 Ohio St.3d 100, 2007-Ohio-861, 863 N.E.2d 113, the court reversed a decision and remanded the case back to the appellate court to address assignments of error that the appellate court had inappropriately determined were moot.
{¶14} These cases provide no inkling that the underlying appellate decisions were void or that unresolved assignments of error somehow tolled the time during which an application for reopening could be filed. Further, both cases illustrate that the appellate decisions, even though incomplete, were capable of being reviewed by the Ohio Supreme Court. The appellate decisions constituted final decisions capable of invoking further review. Therefore, Lawrence's premise that this court's decision in his direct appeal is not final or not subject to review by the Ohio Supreme Court is misplaced.
{¶15} If anything, these cases demonstrate that a mechanism exists to address the failure of an appellate court to properly dispose of all assignments of error raised in an appeal. Lawrence did not take advantage of that process. He, pro se, filed a motion for delayed appeal with the Ohio Supreme Court, but he did not mention the alleged failure of this court to address his pro se assignments of error.
{¶16} Finally, even if we were to accept Lawrence's argument as correct, it still does not constitute good cause in the present case. This is because if at some point in time Lawrence's argument did constitute good cause for untimely filing, it no longer does. Lawrence knew or should have known that this court did not address his pro se assigned errors shortly after the decision in his direct appeal was issued. He could have raised the issue in a timely application therefrom.
{¶17} Even if we give Lawrence the benefit of the doubt, he still waited approximately two years from the date he demonstrably knew of this issue to file his application. Lawrence filed a motion with this court on November 7, 2016, styled "motion by appellant, pro se, for the court to make written determination for the assignment of errors raised on direct appeal pursuant to Ohio App.R. 12(A)(1)(b) and (c)[,]" which was denied. Lawrence was aware, at the very latest, of the issue he claims should constitute good cause for untimely filing at the end of 2016. He does not explain why two additional years elapsed between that time and the filing of his application to reopen. As the Sixth and Seventh Districts have recognized, what may constitute good cause at one point in time may be insufficient for longer delays. State v. Hicks, 6th Dist. Lucas No. L-02-1119, 2005-Ohio-2947, ___ 5; State v. McGee, 7th Dist. Mahoning No. 07 MA 137, 2013-Ohio-1853, ___ 13.
{¶18} Lawrence has failed to demonstrate good cause for the untimely filing of his application. This, alone, is sufficient grounds to deny it without addressing the merits of his claim. Woods, 8th Dist. Cuyahoga No. 82789, 2014-Ohio-296, at ¶ 4, citing McNeal, 8th Dist. Cuyahoga No. 91507, 2009-Ohio-6453, at ¶ 4. As such, Lawrence's application to reopen is denied as untimely without sufficient showing of good cause for untimely filing.
{¶19} Application denied.
/s/_________
EILEEN A. GALLAGHER, JUDGE SEAN C. GALLAGHER, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR