[Cite as State v. Davenport, 2019-Ohio-4156.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, : No. 106143 v. :
CHARLES H. DAVENPORT, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: APPLICATION DENIED RELEASED AND JOURNALIZED: October 9, 2019
Cuyahoga County Court of Common Pleas Case No. CR-15-600942-A Application for Reopening Motion No. 528515
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Gregory J. Ochocki, Assistant Prosecuting Attorney, for appellee.
Charles H. Davenport, pro se.
MARY J. BOYLE, P.J.:
On May 17, 2019, the applicant, Charles H. Davenport, 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. Davenport, 8th Dist. Cuyahoga No. 106143, 2018-Ohio-2933, in which this court affirmed his convictions for
aggravated murder and aggravated arson. Davenport claims that his appellate
counsel was ineffective for not arguing that the trial court abused its discretion in
imposing court costs when Davenport was obviously indigent. On June 19, 2019,
the state of Ohio filed its brief in opposition. For the following reasons, this court
denies the application to reopen.
On November 4, 2015, Sparks threatened Davenport with a gun,
telling Davenport he would shoot him, if he kept coming towards Sparks’s home.
Davenport replied that he would burn Sparks in his sleep if he pulled a gun on him
again. In the early morning of November 5, 2015, Davenport set fire to Sparks’s
house, and Sparks died of smoke inhalation. Davenport confessed to the police at
the scene of the crime.
The grand jury indicted Davenport for two counts of aggravated
murder, one count of murder, two counts of aggravated arson, and one count of
felonious assault. Defense counsel moved to appoint an independent psychological
expert to assist him in representing Davenport who had a history of psychiatric
and/or psychological treatment. Over the state’s objection, the trial court granted
the motion. After reviewing Davenport’s mental health and medical history, alcohol
and drug history, legal history, and psychological state, the state and defense counsel
stipulated to the expert’s opinion that Davenport was competent to stand trial.
However, defense counsel cautioned that the expert opined only on competency; he
did not address the issue of sanity. After a bench trial, the judge found Davenport guilty of all counts. At
sentencing, Davenport’s counsel noted his indigency and asked the trial court to
waive costs. The trial judge merged all of the murder counts and one count of
aggravated arson and sentenced Davenport to 25 years to life. The judge then
merged the other two aggravated arson counts with the felonious assault count and
imposed a five-year consecutive sentence. The judge ordered Davenport to pay
court costs and noted the possibility of community work service to pay the judgment.
Davenport’s appellate counsel argued only that trial counsel was
ineffective for not pursuing an insanity defense. On July 26, 2018, this court
overruled the assignment of error because Davenport knew the wrongness of his
actions.
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. The May
2019 application was filed approximately ten months after this court’s decision.
Thus, it is untimely on its face.
For good cause Davenport proffers in his supporting affidavit that
after sentencing his trial counsel deceived him by telling him that the judge had
waived costs and that Davenport would be able to use the prison commissary.
Consistent with that representation, Davenport was able to use the commissary for
his first two years in prison. However, on April 16, 2019, the prison notified him of
the court cost judgment in the amount of $1,231.57 and that the cashier would place a hold on his account for the amount of the stated obligation. At that time,
Davenport obtained the court transcript and learned that the trial court had imposed
court costs. Davenport commenced this application within a month of learning the
facts. Thus, he concludes that but for his lawyer’s deception and the two-year delay
in collecting the costs, he would have timely pursued an application to reopen.
The court is not persuaded that these excuses state good cause.
Generally, reliance on one’s counsel does not state good cause for untimely filing. In
State v. Mitchell, 8th Dist. Cuyahoga No. 88977, 2009-Ohio-1874, and State v. Alt,
8th Dist. Cuyahoga No. 96289, 2012-Ohio-2054, this court held that the failure to
counsel to inform the appellant of this court’s decision was not good cause.
Similarly, ignorance of the court’s decision does not state good cause. State v. West,
8th Dist. Cuyahoga No. 92508, 2010-Ohio-5576. This court has ruled that an
attorney’s conduct in accepting a retainer to file an App.R. 26(B) application but
then never doing so did not state good cause. State v. Wilcox, 8th Dist. Cuyahoga
No. 96079, 2013-Ohio-2895, and State v. Logan, 8th Dist. Cuyahoga No. 63943,
2000 Ohio App. LEXIS 5327 (Nov. 14, 2000).
Delays in obtaining the transcripts also do not state good cause. 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.) State v. Bussey, 8th Dist. Cuyahoga No. 75301, 2000 WL 1146811
(Aug. 8, 2000); and State v. Chandler, 8th Dist. Cuyahoga No. 59764, 2001 WL 931661 (Aug. 13, 2001) — counsel’s delays in sending applicant the transcript and
refused access to parts of the transcript did not state good cause.
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 lawyers continued to represent them, and their
appellate lawyers 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, lack of imagination, and ignorance of the law do not
establish good cause for failure to seek timely relief under App.R. 26(B).
Moreover, Davenport’s claim of ineffective assistance of counsel is not
well taken. In order to establish a claim of ineffective assistance of appellate counsel,
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[Cite as State v. Davenport, 2019-Ohio-4156.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, : No. 106143 v. :
CHARLES H. DAVENPORT, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: APPLICATION DENIED RELEASED AND JOURNALIZED: October 9, 2019
Cuyahoga County Court of Common Pleas Case No. CR-15-600942-A Application for Reopening Motion No. 528515
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Gregory J. Ochocki, Assistant Prosecuting Attorney, for appellee.
Charles H. Davenport, pro se.
MARY J. BOYLE, P.J.:
On May 17, 2019, the applicant, Charles H. Davenport, 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. Davenport, 8th Dist. Cuyahoga No. 106143, 2018-Ohio-2933, in which this court affirmed his convictions for
aggravated murder and aggravated arson. Davenport claims that his appellate
counsel was ineffective for not arguing that the trial court abused its discretion in
imposing court costs when Davenport was obviously indigent. On June 19, 2019,
the state of Ohio filed its brief in opposition. For the following reasons, this court
denies the application to reopen.
On November 4, 2015, Sparks threatened Davenport with a gun,
telling Davenport he would shoot him, if he kept coming towards Sparks’s home.
Davenport replied that he would burn Sparks in his sleep if he pulled a gun on him
again. In the early morning of November 5, 2015, Davenport set fire to Sparks’s
house, and Sparks died of smoke inhalation. Davenport confessed to the police at
the scene of the crime.
The grand jury indicted Davenport for two counts of aggravated
murder, one count of murder, two counts of aggravated arson, and one count of
felonious assault. Defense counsel moved to appoint an independent psychological
expert to assist him in representing Davenport who had a history of psychiatric
and/or psychological treatment. Over the state’s objection, the trial court granted
the motion. After reviewing Davenport’s mental health and medical history, alcohol
and drug history, legal history, and psychological state, the state and defense counsel
stipulated to the expert’s opinion that Davenport was competent to stand trial.
However, defense counsel cautioned that the expert opined only on competency; he
did not address the issue of sanity. After a bench trial, the judge found Davenport guilty of all counts. At
sentencing, Davenport’s counsel noted his indigency and asked the trial court to
waive costs. The trial judge merged all of the murder counts and one count of
aggravated arson and sentenced Davenport to 25 years to life. The judge then
merged the other two aggravated arson counts with the felonious assault count and
imposed a five-year consecutive sentence. The judge ordered Davenport to pay
court costs and noted the possibility of community work service to pay the judgment.
Davenport’s appellate counsel argued only that trial counsel was
ineffective for not pursuing an insanity defense. On July 26, 2018, this court
overruled the assignment of error because Davenport knew the wrongness of his
actions.
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. The May
2019 application was filed approximately ten months after this court’s decision.
Thus, it is untimely on its face.
For good cause Davenport proffers in his supporting affidavit that
after sentencing his trial counsel deceived him by telling him that the judge had
waived costs and that Davenport would be able to use the prison commissary.
Consistent with that representation, Davenport was able to use the commissary for
his first two years in prison. However, on April 16, 2019, the prison notified him of
the court cost judgment in the amount of $1,231.57 and that the cashier would place a hold on his account for the amount of the stated obligation. At that time,
Davenport obtained the court transcript and learned that the trial court had imposed
court costs. Davenport commenced this application within a month of learning the
facts. Thus, he concludes that but for his lawyer’s deception and the two-year delay
in collecting the costs, he would have timely pursued an application to reopen.
The court is not persuaded that these excuses state good cause.
Generally, reliance on one’s counsel does not state good cause for untimely filing. In
State v. Mitchell, 8th Dist. Cuyahoga No. 88977, 2009-Ohio-1874, and State v. Alt,
8th Dist. Cuyahoga No. 96289, 2012-Ohio-2054, this court held that the failure to
counsel to inform the appellant of this court’s decision was not good cause.
Similarly, ignorance of the court’s decision does not state good cause. State v. West,
8th Dist. Cuyahoga No. 92508, 2010-Ohio-5576. This court has ruled that an
attorney’s conduct in accepting a retainer to file an App.R. 26(B) application but
then never doing so did not state good cause. State v. Wilcox, 8th Dist. Cuyahoga
No. 96079, 2013-Ohio-2895, and State v. Logan, 8th Dist. Cuyahoga No. 63943,
2000 Ohio App. LEXIS 5327 (Nov. 14, 2000).
Delays in obtaining the transcripts also do not state good cause. 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.) State v. Bussey, 8th Dist. Cuyahoga No. 75301, 2000 WL 1146811
(Aug. 8, 2000); and State v. Chandler, 8th Dist. Cuyahoga No. 59764, 2001 WL 931661 (Aug. 13, 2001) — counsel’s delays in sending applicant the transcript and
refused access to parts of the transcript did not state good cause.
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 lawyers continued to represent them, and their
appellate lawyers 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, lack of imagination, and ignorance of the law do not
establish good cause for failure to seek timely relief under App.R. 26(B).
Moreover, Davenport’s claim of ineffective assistance of counsel is not
well taken. In order to establish a claim of ineffective assistance of appellate counsel,
the applicant must demonstrate that counsel’s performance was deficient and that
the deficient performance prejudiced the defense. Strickland v. Washington, 466
U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d
136, 538 N.E.2d 373 (1989); and State v. Reed, 74 Ohio St.3d 534, 1996-Ohio-21,
660 N.E.2d 456. In Strickland, the United States Supreme Court ruled that judicial
scrutiny of an attorney’s work must be highly deferential. The court noted that it is
all too tempting for a defendant to second-guess his lawyer after conviction and that
it would be all too easy for a court, examining an unsuccessful defense in hindsight,
to conclude that a particular act or omission was deficient. Therefore, “a court must
indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged action ‘might be
considered sound trial strategy.’” Strickland at 689.
Specifically, in regard to claims of ineffective assistance of appellate
counsel, the United States Supreme Court has upheld the appellate advocate’s
prerogative to decide strategy and tactics by selecting what he thinks are the most
promising arguments out of all possible contentions. The court noted: “Experienced
advocates since time beyond memory have emphasized the importance of
winnowing out weaker arguments on appeal and focusing on one central issue if
possible, or at most on a few key issues.” Jones v. Barnes, 463 U.S. 745, 751-752,
103 S.Ct. 3308, 77 L.Ed.2d 987 (1983). Indeed, including weaker arguments might
lessen the impact of the stronger ones. Accordingly, the court ruled that judges
should not second-guess reasonable professional judgments and impose on
appellate counsel the duty to raise every “colorable” issue. Such rules would disserve
the goal of vigorous and effective advocacy. The Supreme Court of Ohio reaffirmed
these principles in State v. Allen, 77 Ohio St.3d 172, 1996-Ohio-366, 672 N.E.2d 638. Moreover, even if a petitioner establishes that an error by his lawyer
was professionally unreasonable under all the circumstances of the case, the
petitioner must further establish prejudice: but for the unreasonable error there is a
reasonable probability that the results of the proceeding would have been different.
A reasonable probability is a probability sufficient to undermine confidence in the
outcome. A court need not determine whether counsel’s performance was deficient
before examining prejudice suffered by the defendant as a result of alleged
deficiencies.
A trial court must render a judgment for court costs against a guilty
defendant, even if the defendant is indigent. R.C. 2947.23(A). The Supreme Court
of Ohio has held that a defendant’s financial status is irrelevant to the imposition of
court costs. A trial court may waive court costs, and such a decision is reviewed on
an abuse of discretion standard. State v. White, 103 Ohio St.3d 580, 2004-Ohio-
5989, 817 N.E.2d 393, and State v. Clevenger, 114 Ohio St.3d 258, 2007-Ohio-4006,
871 N.E.2d 589. Following these cases, this court has repeatedly held that a trial
court did not abuse its discretion in imposing court costs, even if the defendant is
indigent. State v. Copeland, 8th Dist. Cuyahoga No. 107187, 2019-Ohio-987; State
v. Jones, 8th Dist. Cuyahoga No. 105719, 2018-Ohio-847; State v. Dawson, 8th Dist.
Cuyahoga No. 104509, 2017-Ohio-965; and State v. Graves, 8th Dist. Cuyahoga No.
103984, 2016-Ohio-7303. Therefore, it is understandable that in the exercise of
professional judgment, appellate counsel would eschew such an argument. Furthermore, in 2013, the Ohio legislature amended R.C. 2947.23 by
adding subsection (C): “the court retains jurisdiction to waive suspend, or modify
the payment of costs of prosecution * * * at the time of sentencing, or at any time
thereafter.” Thus, appellate counsel in 2018 would be hard-pressed to argue
prejudicial reversible error because Davenport may move the trial court at any time
to waive costs. State v. Beasley, 153 Ohio St.3d 497, 2018-Ohio-493, 108 N.E.3d
1028. In Copeland at ¶ 10, this court ruled: “Because appellant could pursue a
waiver of the payment of court costs after sentencing, he was not prejudiced by
counsel’s performance.”
Accordingly, this court denies the application to reopen.
MARY J. BOYLE, PRESIDING JUDGE
SEAN C. GALLAGHER, J., and LARRY A. JONES, SR., J., CONCUR