State v. Clark

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[Cite as State v. Clark, 2006-Ohio-3835.] COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 83474 STATE OF OHIO Plaintiff-Appellee -vsDAMON CLARK Defendant-Appellant DATE OF JOURNALIZATION: : : : : : : : : : : __ JOURNAL ENTRY and OPINION JULY 25, 2006 CHARACTER OF PROCEEDING: Application for Reopening Motion Nos. 375673 and 375674 Lower Court No. CR-430259 Common Pleas Court JUDGMENT: APPLICATION DENIED. APPEARANCE: For Plaintiff-Appellee: WILLIAM D. MASON Cuyahoga County Prosecutor BLAISE D. THOMAS MATTHEW E. MEYER Assistant County Prosecutors 8TH Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: JAMES E. VALENTINE 323 W. Lakeside Avenue Suite 450 - Lakeside Place Cleveland, Ohio 44113 2 PATRICIA ANN BLACKMON, J.: {¶ 1} In State v. Clark, Cuyahoga County Court of Common Pleas Case No. CR-430259, applicant, Damon Clark, aggravated murder with a firearm specification. that judgment.1 was convicted of This court affirmed Clark did not appeal to the Supreme Court of Ohio. {¶ 2} Clark has filed with the clerk of this court an application for reopening. He asserts that he was denied the effective assistance of appellate counsel because: appellate counsel did not assign as error a purported Miranda violation or whether trial counsel was effective, and appellate counsel did not provide Clark with the entire transcript. We deny the application for reopening. As required by App.R. 26(B)(6), the reasons for our denial follow. {¶ 3} Initially, we note that: An application for reopening shall be filed *** within ninety days from journalization of the appellate judgment unless the applicant shows good cause for filing at a later time. 2 An application for reopening must also include a showing of good cause for untimely filing if the application is filed more than ninety days after journalization of the appellate judgment. 3 1 State v. Clark, Cuyahoga App. No. 83474, 2004-Ohio-5964. 2 App.R. 26(B)(1). 3 App.R. 26(B)(2)(b). 3 {¶ 4} This court s decision affirming Clark s conviction was journalized on November 22, 2004. The application was filed on September 8, 2005, clearly in excess of the ninety-day limit. {¶ 5} The Supreme Court has upheld judgments denying applications for reopening solely on the basis that the application was not timely filed and the applicant failed to show good cause for filing at a later time. 4 We need not, therefore, examine the merits of this application if Clark failed to demonstrate good cause for failing to file a timely application. {¶ 6} Clark contends that the filing of his application for reopening was untimely due to the fact that he had to first file a Motion For Leave Of Court To File Motion For New Trial and Motion For New Trial before the Trial Court ***. Application for Extension of Time Too [sic] File an Application for Reopening of Appeal, at 1. (Capitalization in original.) The reason for the motion for new trial was Clark s receipt of a Sworn Affidavit from Jimmie Clark, a Chief Witness for the State at Appellant s Trial, in which Jimmie Clark openly admitted He lied under Oath, just to be given a far less Sentence , please see Sworn Affidavit of Jimmie Clark Dated; January 5, 2005 ***. Id. (Capitalization and punctuation in original.) {¶ 7} Obviously, Jimmie Clark s affidavit was not part of the record on direct appeal. 4 App.R. 26(B)(1); See, e.g., State v. Gumm, 103 Ohio St.3d 162, 2004-Ohio-4755, 814 N.E.2d 861; State v. LaMar, 102 Ohio St.3d 467, 2004-Ohio-3976, 812 N.E.2d 970. 4 Evidence discovered after a conviction that is pertinent to the conviction may be the subject of a motion for a new trial or a petition for postconviction relief, but the omission of evidence in a direct appeal that is outside the trial court record does not present a genuine issue as to the effectiveness of appellate counsel to warrant the reopening of one's appeal. 5 Damon Clark could not, therefore, have maintained an appeal based on Jimmie Clark s affidavit. Similarly, Damon Clark has not provided this court with any authority supporting his argument that putative evidence which did not exist prior to the direct appeal either provides a basis for reopening or demonstrates good cause for the untimely filing of an application for reopening. We must, therefore, conclude that Damon Clark has not demonstrated good cause for filing an untimely application. {¶ 8} Damon Clark s failure to demonstrate good cause is sufficient basis for denying the application for reopening.6 a As a consequence, he has not met the standard for reopening. {¶ 9} Accordingly, the application for reopening is denied. PATRICIA ANN BLACKMON PRESIDING JUDGE DIANE KARPINSKI, J., AND, ANTHONY O. CALABRESE, JR., J., CONCUR. 5 State v. Kaszas (Sept. 10, 1998), Cuyahoga App. Nos. 72546 and 72547, reopening disallowed (Aug. 14, 2000), Motion No. 16752, at 9 (citations deleted). 6 See State v. Collier (June 11, 1987), Cuyahoga App. No. 51993, reopening disallowed 2005-Ohio-5797, Motion No. 370333; State v. Garcia (July 8, 1999), Cuyahoga App. No. 74427, reopening disallowed 2005-Ohio-5796, Motion No. 370916. 5

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