State v. Phillips
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[Cite as State v. Phillips, 2012-Ohio-2055.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96576
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DAVID PHILLIPS
DEFENDANT-APPELLANT
JUDGMENT:
APPLICATION DENIED
Cuyahoga County Court of Common Pleas
Case Nos. CR-538733 and CR-540544
Application for Reopening
Motion No. 453843
RELEASE DATE: May 7, 2012
FOR APPELLANT
David T. Phillips, pro se
Inmate No. 600-843
Mansfield Correctional Institution
P.O. Box 788
Mansfield, Ohio 44901
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
By: Matthew E. Meyer
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., P.J.:
{¶1} David Phillips has filed an application for reopening pursuant to App.R.
26(B). Phillips seeks to reopen the appellate judgment rendered in State v. Phillips, 8th
Dist. No. 96576, 2011-Ohio-6431, which affirmed his conviction and sentence for four
counts of illegal use of a minor in nudity oriented material or performance, two counts of
child endangering, tampering with evidence, possessing criminal tools, two counts of
drug trafficking, four counts of drug possession, and possession of criminal tools. We
decline to reopen his appeal.
{¶2} App.R. 26(B)(2)(b) requires that Phillips establish “a showing of good cause
for untimely filing if the application is filed more than 90 days after journalization of the
appellate judgment” that is subject to reopening. The Supreme Court of Ohio, with
regard to the 90-day deadline provided by App.R. 26(B)(2)(b), has firmly established that:
We now reject [the 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 [the
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.
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. [The 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. * * * 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 [the 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, 653 N.E.2d 252 (1995); State v. Reddick, 72 Ohio St.3d 88, 647
N.E.2d 784 (1995).
{¶3} Phillips is attempting to reopen the appellate judgment journalized on
December 15, 2011. The application for reopening was not filed until April 3, 2012,
more than 90 days after journalization of the appellate judgment in Phillips. Phillips has
failed to establish “good cause” for the untimely filing of his application for reopening.
Restricted access to a law library and indigency do not establish “good cause” for the
untimely filing of his application for reopening. State v. Quiles, 8th Dist. No. 84293,
2006-Ohio-7324. See also State v. Klein, 8th Dist. No. 58389, 1991 WL 41746 (Mar. 28,
1991), reopening disallowed (Mar. 15, 1994), Motion No. 249260, aff’d, 69 Ohio St.3d
1481, 634 N.E.2d 1027 (1994); State v. Trammell, 8th Dist. No. 67834, 1995 WL 415171
(July 13, 1995), reopening disallowed (Apr. 22, 1996), Motion No. 270493; State v.
Travis 8th Dist. No. 56825, 1990 WL 40573 (Apr. 5, 1990), reopening disallowed
(Nov. 2, 1994), Motion No. 251073, aff’d, 72 Ohio St.3d 317, 649 N.E.2d 1226 (1995).
See also State v. Gaston, 8th Dist. No. 79626, 2007 WL 117505 (Jan. 1, 2007), reopening
disallowed (Jan. 17, 2007), Motion No. 391555; State v. Torres, 8th Dist. No. 86530,
2006-Ohio-3696, reopening disallowed (Jan. 3, 2007), Motion No. 390254.
{¶4} Accordingly, the application for reopening is denied.
FRANK D. CELEBREZZE, JR., PRESIDING JUDGE
LARRY A. JONES, SR., J., and
COLLEEN CONWAY COONEY, J., CONCUR
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