State v. Wellman

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[Cite as State v. Wellman, 2003-Ohio-5497.] COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA No. 76219 STATE OF OHIO : : : : : : : : : : : : October 10, 2003 CHARACTER OF PROCEEDINGS : : : : Application for Reopening, Motion No. 349792 Lower Court No. CR-366644 Common Pleas Court JUDGMENT : APPLICATION DENIED. Plaintiff-Appellee vs. CHARLES E. WELLMAN, JR. Defendant-Appellant DATE OF JOURNALIZATION JOURNAL ENTRY AND OPINION APPEARANCES: For Plaintiff-Appellee: WILLIAM D. MASON, ESQ. Cuyahoga County Prosecutor BY: RICHARD J. BOMBIK, ESQ. Assistant County Prosecutor Justice Center - 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: CHARLES E. WELLMAN, JR., PRO SE Inmate No. A368-681 Mansfield Correctional Inst. P. O. Box 788 Mansfield, Ohio 44901 SEAN C. GALLAGHER, J.: 2 {¶1} Charles E. Wellman, Jr., the applicant, has filed an application for reopening pursuant to App.R. 26(B). Wellman is attempting to reopen the appellate judgment that was rendered by this court in State v. Wellman (May 18, 2000), Cuyahoga App. No. 76219, which affirmed his conviction for the offense of rape (R.C. 2907.02(A)) and the classification of a sexual predator, but reversed the conviction for penetration (R.C. 2907.12). the offense of felonious sexual For the following reasons, we decline to reopen Wellman s appeal. {¶2} As mandated by App.R. 26(B)(2)(b), Wellman must establish a showing of good cause for untimely filing if the application is filed more than ninety days after journalization of the appellate judgment which is subject to reopening. See, also, State v. Cooey (1995), 73 Ohio St.3d 411, 653 N.E.2d 252; State v. Reddick (1995), 72 Ohio St.3d 88, 647 N.E.2d 784. Herein, Wellman is attempting to reopen the appellate judgment that was journalized on May 30, 2000. Wellman s application for reopening, however, was not filed until June 16, 2003, more than ninety days after journalization of the appellate judgment which affirmed his conviction for the offense of rape and the classification as a sexual predator. Wellman has failed to demonstrate a showing of good cause for the untimely filing of application his for summarily denied. application reopening for is reopening. fatally Thus, defective and Wellman s must be State v. Klein (Apr. 8, 1991), Cuyahoga App. No. 3 58389, reopening disallowed (Mar. 15, 1994), Motion No. 49260, affirmed (1994), 69 Ohio St.3d 1481, 634 N.E.2d 1027; State v. Trammell (July 24, 1995), Cuyahoga App. No. 67834, reopening disallowed (Apr. 22, 1996), Motion No. 70493; State v. Travis (Apr. 5, 1990), Cuyahoga App. No. 56825, reopening disallowed (Nov. 2, 1994), Motion No. 51073, affirmed (1995), 72 Ohio St.3d 317, 649 N.E.2d 317. {¶3} Notwithstanding the fact that Wellman s application for reopening is untimely filed, a review of his supporting brief fails to support the claim of ineffective assistance of appellate counsel. {¶4} The Supreme Court of Ohio, in State v. Smith, 95 Ohio St.3d 127, 766 N.E.2d 588, 2002-Ohio-1753, has once again examined the standards that must be applied to an application for reopening as brought pursuant to App.R. 26(B). In Smith, the Supreme Court of Ohio specifically held that: Moreover, to justify reopening his appeal, Smith bears the burden of establishing that there was a genuine issue as to whether he has a colorable claim of ineffective assistance of counsel on appeal. State v. Spivey, 84 Ohio St.3d at 25, 701, N.E.2d 696. "Strickland charges us to appl[y] a heavy measure of deference to counsel s judgments, 466 U.S. at 691, 104 S.Ct. 2052, 80 L.Ed.2d 674, and to indulge a strong presumption that counsel s conduct falls within the wide range of reasonable professional assistance, id. at 689, 104 S.Ct. 2052, 80 L.Ed.2d 674. Moreover, we must bear in mind that appellate counsel need not raise every possible issue in order to render constitutionally effective assistance. See Jones v. Barnes (1983), 463 U.S. 745, 103 4 S.Ct 3308, 77 L.Ed.2d 987; State v. Sanders (2002), 94 Ohio St.3d 150, 761 N.E.2d 18. State v. Smith, 95 Ohio St.3d 127, 766 N.E.2d 588, 2002Ohio-1753, at 7. {¶5} for Wellman, through his brief in support of his application reopening, ineffective essentially upon appeal argues by that failing to appellate raise counsel the issue was of ineffective assistance of trial counsel vis-a-vis the introduction of hearsay testimony. The issue of ineffective assistance of trial counsel was previously raised and found to be without merit through Wellman s original appeal. The doctrine of res judicata bars any further review of the claim of ineffective assistance of trial counsel. State v. Murnahan (1992), 63 Ohio St.3d 60, 584 N.E.2d 1204; State v. Bluford (Dec. 9, 1999), Cuyahoga App. No. 75228, reopening disallowed (May 31, 2000), Motion No. 15241; State v. Bugg (Oct. 12, 1999), Cuyahoga App. No. 74747, reopening disallowed (Apr. 7, 2000), Motion No. 13465. In addition, Wellman has not delineated, with any specificity, the issue of hearsay testimony and has thus failed to establish that there exists a genuine issue as to ineffective whether he possesses a colorable assistance of appellate counsel. claim of Strickland v. Washington, supra; State v. Spivey, supra. {¶6} for Finally, the affidavit attached to Wellman s application reopening fails to requires the following: comply with App.R. 26(B)(2)(d) which 5 "(D) A sworn statement of the basis for the claim that appellate counsel s representation was deficient with respect to the assignments of error or arguments raised pursuant to division (B)(2) of this rule and the manner in which the deficiency prejudicially affected the outcome of the appeal, which may include citations to applicable authorities and reference to the record;" {¶7} Wellman, through his affidavit as attached to the application for reopening, states that his appellate counsel was ineffective by failing to raise various claimed errors. Wellman, however, has failed to state how appellate counsel was deficient. Wellman also fails to state how any claimed deficiency prejudiced the outcome of his appeal. State v. Saade (Aug. 7, 2003), Cuyahoga App. Nos. 80705 and 80706. {¶8} Accordingly, we decline to reopen Wellman s appeal and deny his application for reopening as brought pursuant to App.R. 26(B). SEAN C. GALLAGHER, JUDGE ANNE L. KILBANE, P.J., CONCURS DIANE KARPINSKI, J., CONCURS KEYWORDS App.R. 26(B); Untimely; App.R.26(B)(2)-Affidavit.

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