State v. Collier
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[Cite as State v. Collier, 2005-Ohio-5797.] COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA No. 51993 STATE OF OHIO Plaintiff-Appellee vs. LAWRENCE B. COLLIER Defendant-Appellant DATE OF JOURNALIZATION : : : : : : : : : : : : JOURNAL ENTRY AND OPINION OCTOBER 20, 2005 CHARACTER OF PROCEEDINGS : : : Application for Reopening, Motion No. 370333 Common Pleas Court Case No. CR-201669 JUDGMENT : APPLICATION DENIED. APPEARANCES: For plaintiff-appellee: WILLIAM D. MASON Cuyahoga County Prosecutor BY: JON W. OEBKER Assistant County Prosecutor Justice Center - 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: PAUL MANCINO, JR. 75 Public Square Suite 1016 Cleveland, Ohio 44113-2098 2 JUDGE JAMES J. SWEENEY: {¶ 1} On April 1, 2005, Lawrence Collier, pursuant to App.R. 26(B), applied to reopen this court s judgment in State v. Collier (June 11, 1987), Cuyahoga App. No. 51993, which affirmed his convictions for aggravated murder, aggravated robbery, and rape. On August 26, 2005, the State filed its brief in opposition. For the following reason, 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 ninety days from journalization of the appellate decision unless the applicant shows good cause for filing at a later time. The April 2005 application was filed approximately eighteen years after this court s decision. Thus, it is untimely on its face. In an effort to establish good cause, Collier argues that the trial court was without jurisdiction to impose the sentence,1 and that good cause must follow as a corollary. {¶ 3} However, this argument is not persuasive. Even lack of subject matter jurisdiction does not eliminate the need to present the issue in a timely proceeding, and the instant proceeding is 1 Collier argues that his indictment for aggravated murder carried a felony-murder specification, thus making this a capital offense. After a jury trial had commenced, Collier pleaded guilty, and the trial judge, without a three-judge panel, accepted the plea and imposed a twenty-three-years-to-life sentence. Collier maintains, however, under R.C. 2945.06 and State v. Green (1998), 81 Ohio St.3d 100, a three-judge panel must conduct a hearing and impose sentence, and the failure to do so renders the conviction and sentence void. 3 extremely untimely. or excuse as to Collier does not offer any other explanation why application to reopen. it took so many years to submit this The Supreme Court of Ohio in State v. Davis (1999), 86 Ohio St.3d 212, 214, 714 N.E.2d 384, stated: Even if we were to find good cause for earlier failure to file, any such good cause has long since evaporated. Good cause can excuse the lack of a filing only while it exists, not for an indefinite period. State v. Fox (1998), 83 Ohio St.3d 514, 516, 700 N.E.2d 1253, 1254. See, also, 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, 2004Ohio-4755, 814 N.E.2d 861, in which the Supreme Court held that the ninety-day deadline is to be strictly enforced. {¶ 4} Accordingly, this application is properly denied untimely. JAMES J. SWEENEY PRESIDING JUDGE COLLEEN CONWAY COONEY, J., CONCURS MARY EILEEN KILBANE, J., CONCURS as
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