State v. Freeman

2014 Ohio 5268

Opinion

[Cite as State v. Freeman, 2014-Ohio-5268.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 92809

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

CHARLES FREEMAN

DEFENDANT-APPELLANT

JUDGMENT: APPLICATION DENIED

Cuyahoga County Court of Common Pleas Case Nos. CR-08-508859 and CR-08-518221 Application for Reopening Motion No. 477955

RELEASE DATE: November 21, 2014 -i- FOR APPELLANT

Charles E. Freeman, pro se #561-884, Lorain Correctional Institution 2075 South Avon-Belden Road Grafton, Ohio 44044

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor

By: Anna M. Faraglia Katherine Mullin Assistant County Prosecutors 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113 PATRICIA ANN BLACKMON, J.:

{¶1} Under App.R. 26(B) applicant Charles Freeman filed an application to reopen the

appellate judgment rendered in State v. Freeman, 8th Dist. Cuyahoga No. 92809,

2010-Ohio-3714. His application is untimely, and in order to overcome an untimely application,

the applicant must show good cause. Applicant has not established good cause; therefore, the

application must be denied.

{¶2} The appellate judgment was journalized on August 12, 2010. The application for

reopening was not filed until August 26, 2014. This falls well outside the time limits of App.R.

26(B)(1), which 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

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. LaMar, 102 Ohio St.3d 467, 2004-Ohio-3976, 812 N.E.2d 970, ¶ 7-9. “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.” State v.

Gumm, 103 Ohio St.3d 162, 2004-Ohio-4755, 814 N.E.2d 861, ¶ 7. Applicant does not address

the issue of his untimely application and he does not argue that any good cause exists for the late

filing. Therefore, the untimely application for reopening must be denied. State v. Garcia, 8th

Dist. Cuyahoa No. 74427, 2005-Ohio-5796, ¶ 3.

{¶4} Accordingly, this court denies the application to reopen.

PATRICIA ANN BLACKMON, JUDGE

SEAN C. GALLAGHER, P.J., and MARY EILEEN KILBANE, J., CONCUR