Opinion
No. 100501
11-25-2014
STATE OF OHIO PLAINTIFF-APPELLEE v. CHRISTOPHER SMITH DEFENDANT-APPELLANT
FOR APPELLANT Christopher Smith, pro se Inmate No. 644-167 Lebanon Correctional Institution 3791 State Route 63 P.O. Box 56 Lebanon, Ohio 45036 ATTORNEYS FOR APPELLEE Timothy J. McGinty Cuyahoga County Prosecutor By: Kevin R. Filiatraut 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-13-570702 Application for Reopening
Motion No. 479169
FOR APPELLANT
Christopher Smith, pro se
Inmate No. 644-167
Lebanon Correctional Institution
3791 State Route 63
P.O. Box 56
Lebanon, Ohio 45036
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Kevin R. Filiatraut
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., P.J.:
{¶1} Christopher Smith filed an application for reopening pursuant to App.R. 26(B). Smith is attempting to reopen the appellate judgment, rendered in State v. Smith, 8th Dist. Cuyahoga No. 100501, 2014-Ohio-3034, that affirmed his conviction for the offenses of rape and gross sexual imposition. We decline to reopen Smith's appeal.
{¶2} App.R. 26(B)(2)(b) requires that Smith 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 as 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, Smith is attempting to reopen the appellate judgment that was journalized on July 10, 2014. The application for reopening was not filed until October 9, 2014, more than 90 days after journalization of the appellate judgement in Smith, supra.
{¶4} Smith has failed to argue or establish a showing of good cause for the untimely filing of his application for reopening. State v. Kinder, 8th Dist. Cuyahoga No. 94722, 2012-Ohio-1339. See also Lamar, supra; State v. Davis, 86 Ohio St.3d 212, 714 N.E.2d 384 (1999); Reddick, supra. See also State v. Klein, 8th Dist. Cuyahoga No. 58389, 1991 Ohio App. LEXIS 1346 (Mar. 28, 1991), reopening disallowed (Mar. 15, 1994), Motion No. 249260, 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 13, 1995), reopening disallowed (Apr. 22, 1996), Motion No. 270493; State v. Travis, 8th Dist. Cuyahoga No. 56825, 1990 Ohio App. LEXIS 1356 (Apr. 5, 1990), reopening disallowed (Nov. 2, 1994), Motion No. 251073, aff'd, 72 Ohio St.3d 317, 649 N.E.2d 1226 (1995); State v. Gaston, 8th Dist. Cuyahoga No. 79626, 2007-Ohio-155; State v. Torres, 8th Dist. Cuyahoga No. 86530, 2007-Ohio-9.
{¶5} Accordingly, the application for reopening is denied. FRANK D. CELEBREZZE, PRESIDING JUDGE EILEEN A. GALLAGHER, J., and
MARY EILEEN KILBANE, J., CONCUR