State v. Cedeno
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[Cite as State v. Cedeno, 2017-Ohio-9150.] Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA JOURNAL ENTRY AND OPINION No. 97337 STATE OF OHIO PLAINTIFF-APPELLEE vs. NOEL CEDENO DEFENDANT-APPELLANT JUDGMENT: APPLICATION DENIED Cuyahoga County Court of Common Pleas Case No. CR-11-548513-A Application for Reopening Motion No. 512077 RELEASE DATE: December 19, 2017 FOR APPELLANT Noel Cedeno, pro se Inmate No. A662686 Belmont Correctional Institution 68518 Bannock Road Saint Clairsville, Ohio 43950 ATTORNEYS FOR APPELLEE Michael C. O’Malley Cuyahoga County Prosecutor By: Scott C. Zarzycki Assistant County Prosecutor 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113 ANITA LASTER MAYS, J.: {¶1} On November 14, 2017, the applicant, Noel Cedeno, filed an App.R. 26(B) application to reopen this court’s judgment in State v. Cedeno, 8th Dist. Cuyahoga No. 97337, which this court dismissed for lack of a final, appealable order on March 2, 2012. In the application, Cedeno also refers to State v. Cedeno, 8th Dist. Cuyahoga No. 98500, 2013-Ohio-821, in which this court affirmed his convictions for rape and sexual battery.1 Cedeno argues that his appellate counsel was ineffective because he did not properly sign the brief in Case No. 97337, because he caused delay in filing the record in Case No. 98500, because Cedeno did not consent to his appointment, because he did not argue improper questioning by the police, because he did not argue the lack of a certified translator, because he did not argue the victim’s mental health disability, and because he did not argue lack of medical evidence. For the following reasons, this court denies the application. {¶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 1The victim testified that on the night of the incident, she had used marijuana and cocaine and had drunk both vodka and tequila. She was the best friend of Cedeno’s wife and had decided to sleep on the couch at Cedeno’s house. She testified that she fell asleep by 1:00 a.m. and at approximately 5:15 a.m., she was awakened when she felt her body jerking back and forth from Cedeno penetrating her vagina. She pushed Cedeno off and left immediately for her own home. In August 2011, the trial judge found Cedeno guilty of rape and sexual battery, merged these offenses, and sentenced him to five years. After the trial judge corrected the finality problem, Cedeno appealed again in State v. Cedeno, 8th Dist. Cuyahoga No. 98500, 2013-Ohio-821. decision unless the applicant shows good cause for filing at a later time. The November 2017 application was filed approximately four years and eight months after this court’s decision in Case No. 98500 and over five years from this court’s dismissal of Case No. 97337. Thus, it is untimely on its face. Cedeno does not proffer any good cause for the untimely filing. {¶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. Consistent enforcement of the deadline in Ohio protects the state’s interest in finality and ensures that claims of ineffective assistance of appellate counsel are promptly resolved. {¶4} Accordingly, the application for reopening is denied. ANITA LASTER MAYS, JUDGE TIM McCORMACK, P.J., and MARY J. BOYLE, J., CONCUR
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