State v. Yates

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[Cite as State v. Yates, 2010-Ohio-4101.] Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA JOURNAL ENTRY AND OPINION No. 86631 STATE OF OHIO PLAINTIFF-APPELLEE vs. PIERRE YATES DEFENDANT-APPELLANT JUDGMENT: APPLICATION DENIED Application for Reopening Motion No. 436434 Cuyahoga County Common Pleas Court Case No. CR-460767 2 RELEASE DATE: September 1, 2010 FOR APPELLANT Pierre A. Yates, pro se #484-276 Trumbull Correctional Inst. 5701 Burnett Road P.O. Box 901 Leavittsburg, Ohio 44430 ATTORNEYS FOR APPELLEE William D. Mason Cuyahoga County Prosecutor By: Kristen L. Sobieski Assistant County Prosecutor 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113 SEAN C. GALLAGHER, A.J.: {¶ 1} Pierre Yates has filed an application for reopening pursuant to App.R. 26(B). Yates is attempting to reopen the appellate judgment, as rendered in State v. Yates, Cuyahoga App. No. 86631, 2006-Ohio-3004, that affirmed his conviction for the offense of murder with two firearm specifications. We decline to reopen Yate s appeal. 3 {¶ 2} App.R. 26(B)(2)(b) requires that Yates establish a showing of good cause for untimely filing if the application is filed more than 90 days after 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 [applicant 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 [applicant 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. [Applicant] 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. 4 * * * The 90-day requirement in the rule is applicable to all appellants, State v. Winstead (1996), 74 Ohio St.3d 277, 278, 658 N.E.2d 722, and [applicant] 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.) State v. Gumm, 103 Ohio St.3d 162, 2004-Ohio-4755, 814 N.E.2d 861, at ¶7. 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; and State v. Reddick, 72 Ohio St.3d 88, 1995-Ohio-249, 647 N.E.2d 784. {¶ 5} Herein, Yates is attempting to reopen the appellate judgment that was journalized on June 15, 2006. The application for reopening was not filed until August 9, 2010, way more than 90 days after journalization of the appellate judgement in State v. Yates, supra. Yates, in an attempt to establish good cause for the untimely filing of his application for reopening, argues lack of knowledge, lack of communications with his attorney, and reliance upon his attorney. 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. 5 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, 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. Yates has failed to establish a showing of good cause for the untimely filing of his application for reopening, as based upon a lack of knowledge, lack of communications with his attorney, or reliance upon his attorney. {¶ 6} Accordingly, the application for reopening is denied. SEAN C. GALLAGHER, ADMINISTRATIVE JUDGE MELODY J. STEWART, J., and 6 ANN DYKE, J., CONCUR

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