State v. Breznicki

2014 Ohio 197

• Court: Ohio Court of Appeals
• Decided: January 22, 2014
• Docket: 94971
• Status: Published

Opinion

[Cite as State v. Breznicki, 2014-Ohio-197.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 94971

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

MAJOR M. BREZNICKI DEFENDANT-APPELLANT

JUDGMENT: APPLICATION DENIED

Cuyahoga County Court of Common Pleas Case No. CR-527966 Application for Reopening Motion No. 469495

BEFORE: Jones, J., Kilbane, P.J., and Rocco, J.

RELEASED AND JOURNALIZED: January 22, 2014 ATTORNEY FOR APPELLANT

Britta M. Barthol P.O. Box 218 Northfield, Ohio 44067

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor

BY: Mahmoud Awadallah James M. Price Assistant Prosecuting Attorneys The Justice Center, 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 LARRY A. JONES, SR., P.J.:

{¶1} On October 30, 2013, the applicant, Major M. Breznicki, 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. Breznicki, 8th Dist. Cuyahoga No. 94971,

2011-Ohio- 697, that affirmed Breznicki’s convictions and sentences for one count of

rape. Breznicki claims that he has good cause for making an untimely application and that

his appellate attorney was ineffective for not arguing that the trial court erred by

accepting his guilty plea without advising him of the nature of the charges against him

and not ensuring that he understood them. The state has opposed the application for

reopening on various grounds and Breznicki has filed a reply along with a motion to

supplement his application with documents “regarding [his] learning/mental deficiency.”

For the following reasons, this court denies the application to reopen.

{¶2} The appellate judgment was journalized on February 17, 2011. The

application for reopening was not filed until October 30, 2013. This falls well outside the

time limits of App.R. 26(B)(1) that requires applications to be filed within 90 days after

journalization of the appellate judgment. The only exception that would permit us to

review an untimely application is if applicant establishes good cause for filing at a later

time. Id.

{¶3} The Supreme Court of Ohio, with regard to the 90-day deadline provided by

App.R. 26(B)(2)(b), has firmly established that: 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, 1996 Ohio 52, 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.

State v. Gumm, 103 Ohio St.3d 162, 2004-Ohio-4755, 814 N.E.2d 861, ¶ 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, 1995-Ohio-328, 653 N.E.2d 252; State v. Reddick, 72 Ohio St.3d 88, 647

N.E.2d 784 (1995).

{¶4} Breznicki has failed to establish “good cause” for the untimely filing of his

application for reopening. He urges us to find good cause exists for the untimely filing for

the following reasons: (1) he was relying on his mother’s efforts to retain counsel for

him; (2) he has a learning disability; and (3) he has no funds to pay for counsel so he is

relying on the advice of a “jail-house-lawyer.” It is well settled that none of the reasons qualify as good cause for filing an application pursuant to App.R. 26(B) outside the

90-day time period.

[A]n App.R. 26(B) application for reopening is a “collateral postconviction remedy,” and the state “has no constitutional obligation * * * to provide counsel to those defendants who file applications under that rule.”

State v. Twyford, 106 Ohio St.3d 176, 2005-Ohio-4380, 833 N.E.2d 289, ¶ 8, quoting

Morgan v. Eads, 104 Ohio St.3d 142, 2004-Ohio-6110, 818 N.E.2d 1157. Applicant’s

lack of legal training does not excuse his failure to comply with the deadline. Id. at ¶ 9,

citing State v. Reddick, 72 Ohio St.3d 88, 91, 647 N.E.2d 784 (1995).

{¶5} In support of his alleged learning mental deficiency, applicant has submitted

the following documents: an affidavit of a fellow inmate and uncertified school records

from 1984 and 1985. The inmate affidavit avers that applicant had expressed difficulty

understanding things and required assistance in preparation of his legal documents. The

school records pertain to assessments of applicant’s academic and behavioral issues from

approximately thirty years ago. These documents do not provide good cause for

excusing applicant’s failure to comply with the deadline of App.R. 26(B). See State v.

Morris, 10th Dist. Franklin No. 05AP-1032, 2010-Ohio-786, ¶ 10 (finding applicant’s

alleged diagnosis and classification as “seriously mentally ill” did not provide support for

his claim that his mental health issues prevented him from filing a timely application),

citing State v. Haliym, 8th Dist. Cuyahoga No. 54771, 2001 Ohio App. LEXIS 3892

(Aug. 27, 2001) (“court rejected defendant’s claim of mental impairment arising from a

gunshot wound to the head as sufficient to establish good cause for waiting more than ten years to file his application.”). This court has held that an applicant’s “learning disability,

his limited formal education and the fact that he ‘does not possess a legal mind’” are not

good cause for an untimely application for reopening. State v. Day, 8th Dist. Cuyahoga

No. 79368, 2005-Ohio-281, ¶ 5; see also State v. McNeal, 8th Dist. Cuyahoga No. 77977,

2001 Ohio App. LEXIS 1596 (Apr. 5, 2001), reopening disallowed, 2002-Ohio-4764,

Motion No. 38615, ¶ 4-5 (rejecting a “learning disability” as ground for demonstrating

good cause for the late filing of an application for reopening).

{¶6} Finally, the principles of res judicata bars an applicant from raising any issues

that were raised previously or could have been raised previously in an appeal. State v.

Were, 120 Ohio St. 3d 85, 2008-Ohio-5277, 896 N.E.2d 699, ¶ 7. Here, Breznicki

contends that his appellate counsel was ineffective for failing to challenge the validity of

his plea. Specifically, he suggests that he did not understand the nature of the charges

against him in violation of Crim.R. 11. However, appellate counsel argued that the trial

court erred by denying the motion to withdraw his plea. In resolving this assignment of

error, this court found that applicant was

afforded a full Crim.R. 11 hearing, wherein it was demonstrated that Breznicki entered his plea knowingly, intelligently, and voluntarily, *** Further, the record demonstrates that the trial court afforded Breznicki a full hearing on his motion to withdraw his plea and gave the motion full and fair consideration.

Breznicki, 2011-Ohio-697, at ¶ 12. Because this court already found that Breznicki

entered his plea knowingly, intelligently, and voluntarily, the doctrine of res judicata bars

further consideration of this issue. {¶7} The application for reopening is denied.

LARRY A. JONES, SR., PRESIDING JUDGE

MARY EILEEN KILBANE, J., and KENNETH A. ROCCO, J., CONCUR