State v. Cowan

2013 Ohio 1172

• Court: Ohio Court of Appeals
• Decided: March 22, 2013
• Docket: 97877
• Status: Published

Opinion

[Cite as State v. Cowan, 2013-Ohio-1172.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 97877

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

CRAIG A. COWAN DEFENDANT-APPELLANT

JUDGMENT: APPLICATION DENIED

Cuyahoga County Court of Common Pleas Case No. CR-550536 Application for Reopening Motion No. 462840

BEFORE: Jones, P.J., E.A. Gallagher, J., and E.T. Gallagher, J.

RELEASED AND JOURNALIZED: March 22, 2013 FOR APPELLANT

Craig A. Cowan Inmate No. 622-034 Trumbull Correctional Institution 5701 Burnett Road Leavittsburg, Ohio 44430

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor

BY: Brad S. Meyer Assistant Prosecuting Attorney The Justice Center, 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 LARRY A. JONES, SR., P.J.:

{¶1} On February 28, 2013, the applicant, Craig Cowan, 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. Cowan, 8th Dist. No. 97877, 2012-Ohio-5723, in which this

court affirmed Cowan’s convictions for felonious assault, discharging a firearm near or

on a prohibited premises, having a weapon under disability, and improperly handling a

firearm in a motor vehicle, but vacated his sentence in part and remanded the case for

resentencing pursuant to R.C. 2929.14. Cowan now seeks to reopen his appeal on the

grounds of ineffective assistance of appellate counsel. He asserts that his appellate

counsel should have argued that the trial court erred in not ruling on Cowan’s motion for

self-representation at trial. For the following reasons, this court denies the application

sua sponte.

{¶2} Res judicata properly bars this application. See generally State v. Perry, 10

Ohio St.2d 175, 226 N.E.2d 104 (1967). Res judicata prevents repeated attacks on a

final judgment and applies to all issues that were or might have been litigated. In

Murnahan, supra, the Supreme Court ruled that res judicata may bar a claim of

ineffective assistance of appellate counsel unless circumstances render the application of the doctrine unjust.

{¶3} In the present case, Cowan obtained leave to file his own pro se brief in

addition to the brief of his appellate counsel. However, this court limited the pro se brief

to ten pages. Cowan’s 21-page pro se brief argued (1) that the trial court erred when it

did not grant a pretrial hearing for his motion for self-representation, (2) the trial court

erred in allowing evidence of Cowan’s prior conviction to be presented to the jury, and

(3) the verdict was not supported by sufficient evidence.

{¶4} This court declined to address the pro se brief, because Cowan had

disregarded this court’s order limiting the size of the brief. The courts have repeatedly

ruled that res judicata bars an application to reopen when the appellant has filed a pro se

brief. State v. Tyler, 71 Ohio St.3d 398, 1994-Ohio-8, 643 N.E.2d 1150; State v. Boone,

114 Ohio App.3d 275, 683 N.E.2d 67 (7th Dist. 1996); and State v. Williams, 8th Dist.

No. 69936, 1996 Ohio App. LEXIS 4796, (Oct. 31, 1996), reopening disallowed, Motion

No. 280441 (Apr. 24, 1997). This court would have addressed Cowan’s arguments, but

he violated the court’s order. It is his own fault that his arguments were not considered.

As the United States Supreme Court noted in Faretta v. California, 422 U.S. 806, 834,

95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), fn. 46, “a defendant who elects to represent

himself cannot thereafter complain that the quality of his own defense amounted to a

denial of ‘effective assistance of counsel.’” Under such circumstances, the application of

res judicata is appropriate. {¶5} Accordingly, the application for reopening is denied.

LARRY A. JONES, SR., PRESIDING JUDGE

EILEEN A. GALLAGHER, J., and EILEEN T. GALLAGHER, J., CONCUR