Opinion
No. 93057.
RELEASE DATE: November 8, 2010.
Application for Reopening Motion No. 434986, Cuyahoga County Court of Common Pleas, Case No. CR-510316.
APPLICATION DENIED.
Roberto Wynn, Pro Se, Inmate No. 562-875, for Appellant.
William D. Mason, Cuyahoga County Prosecutor, By: Daniel T. Van, Assistant County Prosecutor, The Justice Center, Attorneys for Appellee.
JOURNAL ENTRY AND OPINION
{¶ 1} On June 21, 2010, the applicant, Roberto Wynn, pursuant to App. R. 26(B) and State v. Murnahan (1992), 63 Ohio St.3d 60, 584 N.E.2d 1204, applied to reopen this court's judgment in State v. Roberto Wynn, Cuyahoga App. No. 93057, 2010-Ohio-519, in which this court affirmed Wynn's convictions and sentences for murder, two counts of attempted murder, and four counts of felonious assault, all with three-year firearm specifications. Wynn alleges that his appellate counsel was ineffective for not raising many meritorious arguments and for not consulting with Wynn during the appeal. On July 21, 2010, the state of Ohio filed its brief in opposition. 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. This court journalized its decision in Wynn's appeal on March 1, 2010. Wynn filed his application on June 21, 2010, approximately 110 days later. Thus, his application is untimely.
{¶ 3} Although Wynn asserts that his application is timely, he attached to it a copy of a motion filed in the Supreme Court of Ohio asking for additional time for his "26(B)" because he has had limited access to the law library. Thus, in a favorable light to his pleading, Wynn is endeavoring to show good cause for untimely filing. However, the courts have rejected the claim that limited access to legal materials states good cause for untimely filing. Prison riots, lockdowns, and other library limitations have been rejected as constituting good cause. State v. Tucker, 73 Ohio St.3d 152, 1995-Ohio-2; State v. Kaszas (Sept. 21, 1998), Cuyahoga App. Nos. 72547 and 72547, reopening disallowed (Aug. 14, 2000), Motion No. 316752; State v. Hickman (Apr. 30, 1998), Cuyahoga App. No. 72341, reopening disallowed (Dec. 13, 2000), Motion No. 320830 and State v. Turner (Nov. 16, 1989), Cuyahoga App. No. 55960, reopening disallowed (Aug. 20, 2001), Motion No. 323221. 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. The Court reaffirmed the principle that lack of effort, imagination, and ignorance of the law do not establish good cause for not complying with this fundamental aspect of the rule. Untimeliness alone is sufficient to dismiss the application.
{¶ 4} Accordingly, this court denies the application to reopen.
FRANK D. CELEBREZZE, JR., J., and LARRY A. JONES, J., CONCUR