State v. Pate

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[Cite as State v. Pate, 2010-Ohio-1850.] Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA JOURNAL ENTRY AND OPINION No. 90093 STATE OF OHIO PLAINTIFF-APPELLEE vs. DARNELL PATE DEFENDANT-APPELLANT JUDGMENT: APPLICATION DENIED Application for Reopening Motion No. 430249 Cuyahoga County Common Pleas Court Case No. CR-473890 RELEASE DATE: April 27, 2010 2 FOR APPELLANT Darnell Pate, pro se Inmate No. 531-159 Lebanon Correctional Institution P.O. Box 56 Lebanon, Ohio 45036 ATTORNEYS FOR APPELLEE William D. Mason Cuyahoga County Prosecutor By: Katherine Mullin Assistant County Prosecutor 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113 MARY EILEEN KILBANE, J.: {¶ 1} Darnell Pate has filed an application for reopening pursuant to App.R. 26(B). Pate is attempting to reopen the appellate judgment, as rendered in State v. Pate, Cuyahoga App. No. 90093, 2008-Ohio-2934, which affirmed his conviction for the offenses of rape, kidnaping, and gross sexual imposition. We decline to reopen Pate s appeal. {¶ 2} App.R. 26(B)(2)(b) requires that Pate establish a showing of good cause for untimely filing if the application is filed more than 90 days after 3 journalization of the appellate judgment, which 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 firmly established that: {¶ 3} We now reject Gumm s claim that those excuses gave him good cause to miss the 90-day deadline in App.R. 26(B). The rule was amended to include the 90-day deadline more than seven months before Gumm s appeal of right was decided by the court of appeals in February 1994, so the rule was firmly established then, just as it is today. 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. {¶ 4} 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. Gumm could have retained new attorneys after the court of appeals issued its decision in 1994, or he could have filed the application on his own. What he could not do was ignore the rule s filing deadline. * * * The 90-day requirement in the rule is applicable to all 4 appellants, State v. Winstead (1996), 74 Ohio St.3d 277, 278, 658 N.E.2d 722, and Gumm offers no sound reason why he unlike so many other Ohio criminal defendants could not comply with that fundamental aspect of the rule. (Emphasis added.) {¶ 5} State v. Gumm, 103 Ohio St.3d 162, 2004-Ohio-4755, 814 N.E.2d 861, at ¶7. {¶ 6} 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, 1995-Ohio-328, 653 N.E.2d 252; State v. Reddick, 72 Ohio St.3d 88, 1995-Ohio-249, 647 N.E.2d 784. {¶ 7} Herein, Pate is attempting to reopen the appellate judgment that was journalized on June 16, 2008. The application for reopening was not filed until January 15, 2010, more than 90 days after journalization of the appellate judgement in State v. Pate, supra. Lack of knowledge or ignorance of the time constraint, applicable to an application for reopening per App.R. 26(B), does not provide sufficient cause for untimely filing. State v. Klein (Mar. 28, 1991), Cuyahoga App. No. 58389, reopening disallowed (Mar. 15, 1994), Motion No. 249260, affirmed (1994), 69 Ohio St.3d 1481; State v. Trammell (July 13, 1995), Cuyahoga App. No. 67834, reopening disallowed (Apr. 22, 1996), Motion No. 270493; State v. Travis (Apr. 5, 1990), Cuyahoga App. No. 56825, reopening disallowed (Nov. 2, 1994), Motion No. 251073, affirmed (1995), 72 Ohio St.3d 317. See, also, State v. Torres, Cuyahoga App. No. 86530, 2007-Ohio-3696, 5 reopening disallowed (Jan. 3, 2007), Motion No, 390254; State v. Gaston (Feb. 7. 2002), Cuyahoga App. No. 79626, reopening disallowed (Jan. 17, 2007), Motion No. 391555. In addition, reliance upon appellate counsel does not establish good cause for untimely filing an application for reopening. State v. White (Jan. 31, 1991), Cuyahoga App. No. 57944, reopening disallowed (Oct. 19, 1994), Motion No. 249174; State v. Allen (Nov. 3, 1994), Cuyahoga App. No. 65806, reopening disallowed (July 8, 1996), Motion No. 267054. See, also, State v. Moss (May 13, 1993), Cuyahoga App. Nos. 62318 and 62322, reopening disallowed (Jan. 16, 1997), Motion No. 275838; State v. McClain (Aug. 3, 1995), Cuyahoga App. No. 67785, reopening disallowed (Apr. 15, 1997), Motion No. 276811; State v. Russell (May 9, 1996), Cuyahoga App. No. 69311, reopening disallowed (June 16, 1997), Motion No. 282351. Herein, Pate has failed to establish a showing of good cause for the untimely filing of his application for reopening, as premised upon a lack of knowledge, lack of communications with his attorney, or reliance upon his attorney. {¶ 8} Accordingly, the application for reopening is denied. MARY EILEEN KILBANE, JUDGE SEAN C. GALLAGHER, A.J., and JAMES J. SWEENEY, J., CONCUR

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