State v. Douglas

2012 Ohio 3799

• Court: Ohio Court of Appeals
• Decided: August 17, 2012
• Docket: 91029
• Status: Published

Opinion

[Cite as State v. Douglas, 2012-Ohio-3799.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 91029

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

ALDEN DOUGLAS DEFENDANT-APPELLANT

JUDGMENT: APPLICATION DENIED

Cuyahoga County Common Pleas Court Case No. CR-449904 Application for Reopening Motion No. 454809

RELEASE DATE: August 17, 2012 FOR APPELLANT

Douglas Alden, pro se Inmate No. 481-594 Marion Correctional Institution P.O. Box 57 Marion, Ohio 43302

ATTORNEYS FOR APPELLEE

William D. Mason Cuyahoga County Prosecutor By: Mark J. Mahoney Assistant County Prosecutor 9th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113 MARY J. BOYLE, P.J.:

{¶1} In State v. Douglas, Cuyahoga C.P. No. CR-449904, applicant, Alden

Douglas, was convicted of two counts of felonious assault. This court affirmed his

resentencing in State v. Douglas, 8th Dist. No. 91029, 2009-Ohio-1068. The Supreme

Court of Ohio denied Douglas’s motion for leave to appeal and dismissed the appeal as

not involving any substantial constitutional question. State v. Douglas, 122 Ohio St.3d

1481, 2009-Ohio-3625, 910 N.E.2d 479.

{¶2} Douglas has filed with the clerk of this court an application for reopening.

He asserts that he was denied the effective assistance of appellate counsel. We deny the

application for reopening. As required by App.R. 26(B)(6), the reasons for our denial

follow.

{¶3} Initially, we note that App.R. 26(B)(1) provides, in part: “An application

for reopening shall be filed * * * within ninety days from journalization of the appellate

judgment unless the applicant shows good cause for filing at a later time.” App.R.

26(B)(2)(b) requires that an application for reopening include “a showing of good cause

for untimely filing if the application is filed more than ninety days after journalization of

the appellate judgment.”

{¶4} This court’s decision affirming Douglas’s conviction was journalized on

March 23, 2009. The application was filed on May 7, 2012, clearly in excess of the 90-day limit. Douglas does not argue or demonstrate good cause for the untimely filing

of his application for reopening. Compare State v. Welch, 8th Dist. No. 95577,

2012-Ohio-3351 (denying an application for reopening as untimely when the applicant

failed to argue or establish good cause under App.R. 26(B)(2)(b)).

{¶5} The Supreme Court has upheld judgments denying applications for

reopening solely on the basis that the application was not timely filed and the applicant

failed to show “good cause for filing at a later time.” App.R. 26(B)(1). See, e.g., State

v. Gumm, 103 Ohio St.3d 162, 2004-Ohio-4755, 814 N.E.2d 861, and State v. LaMar, 102

Ohio St.3d 467, 2004-Ohio-3976, 812 N.E.2d 970. Applicant’s failure to demonstrate

good cause is a sufficient basis for denying the application for reopening. See, e.g.,

State v. Almashni, 8th Dist. No. 92237, 2010-Ohio-898, reopening disallowed,

2012-Ohio-349.

{¶6} We also note that Douglas did not support his application with a sworn

statement as required by App.R. 26(B)(2)(d). See, e.g., State v. Bartoe, 8th Dist. No.

95286, 2012-Ohio-154. Additionally, Douglas represented himself in his direct appeal

in Appeal No. 91029. “A defendant who represents himself or herself on direct appeal,

however, may not maintain an application for reopening. State v. Gaston, Cuyahoga

App. No. 92242, 2009-Ohio-3080, reopening disallowed, 2009-Ohio-4715.” State v.

Effinger, 8th Dist. No. 93450, 2009-Ohio-5242, ¶ 4.

{¶7} As a consequence, Douglas has not met the standard for reopening.

{¶8} Accordingly, the application for reopening is denied. _______________________________________ MARY J. BOYLE, PRESIDING JUDGE

MARY EILEEN KILBANE, J., and LARRY A. JONES, SR., J., CONCUR