State v. Barnes

2011 Ohio 1916

• Court: Ohio Court of Appeals
• Decided: April 20, 2011
• Docket: 94025
• Status: Published

Opinion

[Cite as State v. Barnes, 2011-Ohio-1916.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 94025

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

RICHARD BARNES

DEFENDANT-APPELLANT

JUDGMENT: APPLICATION DENIED

Cuyahoga County Common Pleas Court Case No. CR-524053 Application for Reopening Motion No. 443518 2

RELEASE DATE: April 20, 2011

FOR APPELLANT

Richard Barnes, pro se Inmate No. 572-962 Belmont Correctional Institution P.O. Box 540 St. Clairsville, Ohio 43950

ATTORNEYS FOR APPELLEE

William D. Mason Cuyahoga County Prosecutor By: Jennifer A. Driscoll Assistant County Prosecutor 9th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113

MARY J. BOYLE, J.:

{¶ 1} On April 7, 2011, the applicant, Richard Barnes, pursuant to App.R. 26(B) and

State v. Murnahan (1992), 63 Ohio St.3d 60, 584 N.E.2d 1204, applied to reopen this court’s

judgment in State of Ohio v. Richard Barnes, Cuyahoga App. No. 94025, 2010-Ohio-4674, in

which this court affirmed Barnes’s convictions and sentences for two counts of sexual battery 3

and one count of theft. Barnes asserts his appellate counsel was ineffective for not assigning 1

as error the consecutive sentences; the sufficiency of the evidence, including the credibility

and competency of the victim and the lack of expert witnesses; and the strategy of having him

plead guilty instead of taking the case to trial. 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 ninety days from journalization of the decision unless

the applicant shows good cause for filing at a later time. The April 7, 2011 application was

filed approximately six months after this court’s decision. Thus, it is untimely on its face.

{¶ 3} Barnes argues that his lack of knowledge and resources provides good cause.

This is unpersuasive. The courts have consistently ruled that lack of knowledge or ignorance

of the law does not provide sufficient cause for untimely filing. State v. Klein (Apr. 8,

1991), Cuyahoga App. No. 58389, reopening disallowed (Mar. 15, 1994), Motion No. 249260,

affirmed (1994), 69 Ohio St.3d 1481; State v. Trammell (July 24, 1995), Cuyahoga App. No.

67834, reopening disallowed (Apr. 22, 1996), Motion No. 270493; State v. Cummings (Oct.

17, 1996), Cuyahoga App. No. 69966, reopening disallowed (Mar. 26, 1998), Motion No.

1 Barnes pleaded guilty to those charges, and the trial judge sentenced him to a total of seven years, three years each on the sexual battery charges and one year on the theft charge, all to run consecutively. 4

292134; and State v. Young (Oct. 13, 1994), Cuyahoga App. Nos. 66768 and 66769,

reopening disallowed (Dec. 5, 1995), Motion No. 266164. Ignorance of the law is no excuse.

{¶ 4} Similarly, lack of the transcript, legal advice, or library resources do not state

good cause. In State v. Towns (Oct. 23, 1997), Cuyahoga App. No. 71244, reopening

disallowed (May 4, 2000), Motion No. 306308, the applicant endeavored to show good cause

for untimely filing by arguing that his counsel was uncooperative and refused to send him any

documents concerning the case. This court rejected that argument, ruling that “being a

layman and experiencing delays in obtaining records related to one’s conviction are not

sufficient bases for establishing good cause for untimely filing of an application for

reopening.” (Slip Opinion at 3.) See, also, State v. Bussey (Dec. 2, 1999), Cuyahoga App.

No. 75301, reopening disallowed (Aug. 8, 2000), Motion No. 316647; City of Newburgh

Heights v. Chauncey (Aug. 26, 1999), Cuyahoga App. No. 75465, reopening disallowed (Oct.

20, 2000), Motion No. 317839; State v. Blackmon (July 18, 1985), Cuyahoga App. No. 48787,

reopening disallowed (Oct. 25, 2000), Motion No. 318768; State v. Sanchez (June 9, 1994),

Cuyahoga App. No. 62796, reopening disallowed (Aug. 16, 2001), Motion No. 323717; State

v. Chandler (Mar. 5, 1992), Cuyahoga App. No. 59764, reopening disallowed (Aug. 13, 2001),

Motion No. 324366 — counsel’s delays in sending applicant the transcript and refused access

to parts of the transcript did not state good cause. The courts have also repeatedly rejected 5

the claim that limited access to legal materials states good cause for untimely filing. Prison

riots, lockdowns and other library limitations have been rejected as constituting good cause.

State v. Tucker, 73 Ohio St.3d 152, 1995-Ohio-2, 652 N.E.2d 720; State v. Kaszas (Sept. 21,

1998), Cuyahoga App. Nos. 72547 and 72547, reopening disallowed (Aug. 14, 2000), Motion

No. 316752; State v. Hickman (Apr. 30, 1998), Cuyahoga App. No. 72341, reopening

disallowed (Dec. 13, 2000), Motion No. 320830; and State v. Turner (Nov. 16, 1989),

Cuyahoga App. No. 55960, reopening disallowed (Aug. 20, 2001), Motion No. 323221.

{¶ 5} Furthermore, 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 ninety-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 counsels continued to represent them, and their appellate counsels 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 ninety-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. Thus, Barnes’s

excuses of lack of resources and knowledge do not state good cause. 6

{¶ 6} Application to reopen denied.

_____________________________________ MARY J. BOYLE, JUDGE

PATRICIA ANN BLACKMON, P.J., and KENNETH A. ROCCO, J., CONCUR