Opinion
No. 102754
04-06-2018
STATE OF OHIO PLAINTIFF-APPELLEE v. TERRENCE RUDD, JR. DEFENDANT-APPELLANT
FOR APPELLANT Terrence Rudd, Jr., pro se Mansfield Correctional Institution Inmate No. A672971 P.O. Box 788 Mansfield, Ohio 44901 ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor By: Frank Romeo Zelznikar 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-14-583175-A
Application for Reopening
Motion No. 515693
FOR APPELLANT
Terrence Rudd, Jr., pro se
Mansfield Correctional Institution
Inmate No. A672971
P.O. Box 788
Mansfield, Ohio 44901
ATTORNEYS FOR APPELLEE
Michael C. O'Malley
Cuyahoga County Prosecutor
By: Frank Romeo Zelznikar
Assistant County Prosecutor
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113 FRANK D. CELEBREZZE, JR., J.:
{¶1} On March 13, 2018, the applicant, Terrence Rudd, Jr., pursuant to App.R. 26(B) and State v. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204 (1992), applied to reopen this court's judgment in State v. Rudd, 8th Dist. Cuyahoga No. 102754, 2016-Ohio-106, in which this court affirmed his convictions for murder and two counts of felonious assault, but reversed the imposition of court costs and remanded for the limited purpose of allowing him to seek a waiver of court costs. Rudd now claims that his appellate counsel should have argued the ineffective assistance of trial counsel for not seeking an instruction for aggravated assault, a lesser degree of felonious assault. For the following reasons, this court denies the application.
{¶2} App.R. 26(B)(1) and (2)(b) require applications claiming ineffective assistance of appellate counsel to be filed within 90 days from journalization of the decision unless the applicant shows good cause for filing at a later time. Rudd filed his application over two years after this court's January 14, 2016 decision. Thus, the application is untimely on its face. Rudd tries to show good cause by arguing that his appellate attorney caused the delay by not sending him a copy of the transcript that was necessary to write the application. Rudd states that he had to file a grievance against his appellate attorney to obtain a copy of the transcript.
{¶3} This court has repeatedly held that difficulty in obtaining the transcript does not constitute good cause. In State v. Towns, 8th Dist. Cuyahoga No. 71244, 1997 Ohio App. LEXIS 4709 (Oct. 23, 1997), reopening disallowed, 2000 Ohio App. LEXIS 2030 (May 4, 2000), the applicant endeavored to show good cause for untimely filing by arguing that his counsel was uncooperative and refused to send him any documents concerning the case. This court rejected that argument, ruling that "being a layman and experiencing delays in obtaining records related to one's conviction are not sufficient bases for establishing good cause for untimely filing of an application for reopening." Id. at 3. State v. Bussey, 8th Dist. Cuyahoga No. 75301, 1999 WL 1087494 (Dec. 2, 1999) reopening disallowed, 2000 WL 1146811 (Aug. 8, 2000); Newburgh Hts. v. Chauncey, 8th Dist. Cuyahoga No. 75465, 1999 WL 608801 (Aug. 12, 1999), reopening disallowed, 2000 WL 33126876 (Oct. 20, 2000); State v. Chandler, 8th Dist. Cuyahoga No. 59764, 1992 WL 41856 (Mar. 5, 1992), reopening disallowed, 2001 WL 931661 (Aug. 13, 2001) — counsel's delays in sending applicant the transcript and refused access to parts of the transcript did not state good cause.
{¶4} Moreover, the Supreme Court of Ohio in State v. LaMar, 102 Ohio St.3d 467, 2004-Ohio-3976, 812 N.E.2d 970, and State v. Gumm, 103 Ohio St.3d 162, 2004-Ohio-4755, 814 N.E.2d 861, held that the 90-day deadline for filing must be strictly enforced. In those cases the applicants argued that after the court of appeals decided their cases, their appellate lawyers continued to represent them, and their appellate lawyers could not be expected to raise their own incompetence. Although the Supreme Court agreed with this latter principle, it rejected the argument that continued representation provided good cause. In both cases, the court ruled that the applicants could not ignore the 90-day deadline, even if it meant retaining new counsel or filing the applications themselves. The court then reaffirmed the principle that lack of legal training, effort, imagination, and ignorance of the law do not establish good cause for failure to seek timely relief under App.R. 26(B).
{¶5} Accordingly, this court denies the application to reopen. /s/_________
FRANK D. CELEBREZZE, JR., JUDGE EILEEN A. GALLAGHER, A.J., and
EILEEN T. GALLAGHER, J., CONCUR