State v. Pettway

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[Cite as State v. Pettway, 2010-Ohio-235.] Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA JOURNAL ENTRY AND OPINION No. 91716 STATE OF OHIO PLAINTIFF-APPELLEE vs. TIMOTHY PETTWAY DEFENDANT-APPELLANT JUDGMENT: APPLICATION DENIED Application for Reopening Motion No. 429357 Cuyahoga County Common Pleas Court Case No. CR-498474 RELEASE DATE: January 22, 2010 2 ATTORNEYS FOR APPELLEE William D. Mason Cuyahoga County Prosecutor By: Pinkey S. Carr Assistant County Prosecutor 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113 FOR APPELLANT Timothy Pettway, pro se Inmate Number 550-655 Mansfield Correctional Inst. P.O. Box 788 Mansfield, Ohio 44901 MELODY J. STEWART, J.: {¶ 1} On December 16, 2009, Timothy Pettway filed an application for reopening pursuant to App. R. 26(B). He is attempting to reopen the appellate judgment that was rendered by this court in State v. Pettway, Cuyahoga App. No. 91716, 2009-Ohio-4544. In that opinion, we affirmed the defendant s conviction for murder. For the following reasons, we decline to reopen Pettway s original appeal. 3 {¶ 2} App.R. 26(B)(1) provides, in part: shall be filed "An application for reopening * * * within ninety days from journalization of the appellate judgment unless the applicant shows good cause for filing at a later time." App.R. 26(B)(2)(b) requires that an application for reopening 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} This court's decision affirming Pettway s conviction was journalized on September 14, 2009. Pettway, however, did not file his application for reopening until December 16, 2009 and in excess of the ninety-day limit. {¶ 4} The Supreme Court has upheld judgments 1 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. 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. 1 MONTH DAYS SEPTEMBER 16 OCTOBER 31 NOVEMBER 30 DECEMBER 16 TOTAL 93 4 {¶ 5} Similarly, this court has also denied applications to reopen when the application was untimely filed and the appellant failed to demonstrate good cause. See State v. Ellis, Cuyahoga App. No. 91116, 2009-Ohio-852, reopening disallowed, 2009-Ohio-2875 (92 days); State v. Burnett, Cuyahoga App. No. 87506, 2007-Ohio-284, reopening disallowed, 2007-Ohio-4434 (98 days); State v. Agosto, Cuyahoga App. No. 87283, 2006-Ohio-5011, reopening disallowed, 2007-Ohio-848 (91 days); State v. Peyton, Cuyahoga App. No. 86797, 2006-Ohio-3951, reopening disallowed, 2007-Ohio-263 (93 days); and State v. Lowe, Cuyahoga App. No. 82997, 2004-Ohio-4622, reopening disallowed, 2005-Ohio-5986 (91 days). We need not, therefore, examine the merits of this application if Pettway failed to demonstrate good cause for failing to file a timely application. {¶ 6} In his application, Pettway acknowledges that the application is untimely but states that good cause will be demonstrated in his brief. However, Pettway failed to address the issue of good cause within his brief. Consequently, Pettway s failure to demonstrate good cause is a sufficient basis for denying his application for reopening. 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. Therefore, Pettway has not 5 met the standard for reopening. Accordingly, the application for reopening is denied. MELODY J. STEWART, JUDGE KENNETH A. ROCCO, P.J., and JAMES J. SWEENEY, J., CONCUR

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