State v. Peterson
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[Cite as State v. Peterson, 2014-Ohio-804.] STATE OF OHIO, MAHONING COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT STATE OF OHIO, PLAINTIFF-APPELLEE, - VS BOBBIE PETERSON, DEFENDANT-APPELLANT. ) ) ) ) ) ) ) ) ) CASE NO. 07 MA 59 OPINION AND JUDGMENT ENTRY CHARACTER OF PROCEEDINGS: Application for Reopening, Criminal Appeal from Common Pleas Court, Case No. 05 CR 339. JUDGMENT: Application Denied. APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: Attorney Paul J. Gains Prosecuting Attorney Attorney Ralph Rivera Asst. Prosecuting Attorney 21 W. Boardman St., 6th Fl. Youngstown, OH 44503 Bobbie Peterson, Pro-se #A 522955 Madison Correctional Inst. P.O. Box 740 London, OH 43140 JUDGES: Hon. Mary DeGenaro Hon. Joseph J. Vukovich Hon. Cheryl L. Waite Dated: February 13, 2014 [Cite as State v. Peterson, 2014-Ohio-804.] PER CURIAM: {¶1} Appellant Bobbie Peterson, acting pro-se, has filed a delayed application to reopen his appeal based upon a claim of ineffective assistance of appellate counsel pursuant to App. R. 26(B). Because Peterson has failed to demonstrate good cause for the untimeliness of the application, it is denied. {¶2} On February 15, 2007, Peterson pled guilty to kidnapping, multiple counts of rape, aggravated burglary and violation of a protection order. Following a sentencing hearing, on February 27, 2007, the court imposed a thirteen year term of incarceration and accepted Peterson's stipulation that he would be classified as a sexual predator. {¶3} Peterson's appellate counsel initially filed a no merit brief with this court and moved to withdraw. On April 29, 2008, this court denied the motion because there was a non-frivolous argument regarding whether Peterson had been properly informed of the consequences of stipulating to a sexual predator classification. Ultimately this court determined that the consequences of Peterson's classification as a sexual predator were not a mandatory part of the plea colloquy and whether his classification was supported by clear and convincing evidence was moot. In State v. Peterson, 7th Dist. No. 07 MA 59, 2008-Ohio-6636, this court upheld his convictions. Peterson did not appeal this decision to the Ohio Supreme Court. {¶4} On January 2, 2014, Peterson filed an application for delayed reopening pursuant to App.R. 26(B). The State filed a response on January 7, 2014. {¶5} App.R. 26(B) allows a criminal defendant to challenge the constitutional effectiveness of appellate counsel by reopening the appeal. However, the rule provides that an application for reopening must be filed "within ninety days from journalization of the appellate judgment unless the applicant shows good cause for filing at a later time." The opinion in his direct appeal was journalized on December 10, 2008. Peterson filed his application for reopening almost five years after the ninety days expired. Thus, we can only review the merits of Peterson's application if he can establish good cause for his untimely filing. {¶6} Peterson summarily contends that he failed to file the application due to -2- counsel's "inadequate performance" which "compromised the appeal". However, Peterson's application specifies no reason for the delay. In the section entitled "Showing of Good Cause for Untimely Filing" Peterson alleges that he did not know about the law of allied offenses. {¶7} This does not constitute good cause for the untimeliness of the present application. The fact that Peterson was incarcerated or untrained in the law does not establish good cause. See State v. Dew, 7th Dist. No. 08 MA 62, 2012-Ohio-434, ¶8; State v. Ramirez, 8th Dist. No. 78364, 2005-Ohio-378, ¶4. {¶8} Because Peterson has failed to establish good cause for the delay in filing for reopening his appeal, the merits cannot be addressed and his application for reopening is denied. _________________________________ JUDGE MARY DeGENARO _________________________________ JUDGE JOSEPH J. VUKOVICH _________________________________ JUDGE CHERYL L. WAITE
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