State v. Zimmer
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[Cite as State v. Zimmer, 2017-Ohio-8309.] Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA JOURNAL ENTRY AND OPINION No. 104946 STATE OF OHIO PLAINTIFF-APPELLEE vs. LEO ZIMMER DEFENDANT-APPELLANT JUDGMENT: APPLICATION DENIED Cuyahoga County Court of Common Pleas Case No. CR-16-602862-A Application for Reopening Motion No. 510574 RELEASE DATE: October 23, 2017 FOR APPELLANT Leo Zimmer, pro se Inmate No. 684988 North Central Correctional Institution P.O. Box 1812 Marion, Ohio 43301 ATTORNEYS FOR APPELLEE Michael C. O’Malley Cuyahoga County Prosecutor By: Andrew F. Rogalski Assistant County Prosecutor 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113 PATRICIA ANN BLACKMON, J.: {¶1} On September 21, 2017, the applicant, Leo Zimmer, pursuant to App.R. 26(B) and State v. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204 (1992), applied to reopen this court’s judgment in State v. Zimmer, 8th Dist. Cuyahoga No. 104946, 2017-Ohio-4440, in which this court affirmed Zimmer’s convictions for five counts of rape, five counts of kidnapping, and one count of gross sexual imposition. Zimmer asserts that his appellate counsel should have argued (1) error in denying Zimmer’s pro se motion for new trial, (2) ineffective assistance of trial counsel for not calling additional witnesses to testify on behalf of Zimmer, and (3) ineffective assistance of trial counsel in forcing Zimmer to accept a bench trial. Zimmer also complains that his appellate counsel refused to communicate with him. Sua sponte, for the following reasons, this court denies the application to reopen. {¶2} App.R. 26(B)(1) and (2)(b) require applications claiming ineffective assistance of appellate counsel to be filed within 90 days from journalization of the decision unless the applicant shows good cause for filing at a later time. This court issued its decision on June 22, 2017, and Zimmer filed his application one day late on Thursday, September 21, 2017. + 21 (Sept.) = 91. Eight (remaining days in June) + 31 (July) + 31 (Aug.) Thus, this application is untimely. Zimmer did not proffer any explanation to show good cause. {¶3} The Supreme Court of Ohio in State v. Lamar, 102 Ohio St.3d 467, 2004-Ohio-3976, 812 N.E.2d 970, and State v. Gumm, 103 Ohio St.3d 162, 2004-Ohio-4755, 814 N.E.2d 861, held that the 90-day deadline for filing must be strictly enforced. In those cases, the applicants argued that after the court of appeals decided their cases, their appellate counsel continued to represent them, and their appellate counsel could not be expected to raise their own incompetence. Although the Supreme Court agreed with this latter principle, it rejected the argument that continued representation provided good cause. In both cases the court ruled that the applicants could not ignore the 90-day deadline, even if it meant retaining new counsel or filing the applications themselves. The court then reaffirmed the principle that lack of effort, imagination, and ignorance of the law do not establish good cause for complying with this fundamental aspect of the rule. As a corollary, miscalculation of the time needed for mailing would also not state good cause. State v. Agosto, 8th Dist. Cuyahoga No. 87283, 2006-Ohio-5011, reopening disallowed, 2007-Ohio-848; State v. Ellis, 8th Dist. Cuyahoga No. 91116, 2009-Ohio-852, reopening disallowed, 2009-Ohio-2875; State v. Peyton, 8th Dist. Cuyahoga No. 86797, 2006-Ohio-3951, reopening disallowed, 2007-Ohio-263 (App.R. 26(B) application to reopen denied as untimely because it was filed two days late). {¶4} Accordingly, the application for reopening is denied. PATRICIA ANN BLACKMON, JUDGE EILEEN T. GALLAGHER, P.J., and FRANK D. CELEBREZZE, JR., CONCUR
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