State v. Fulton

2013 Ohio 2087

• Court: Ohio Court of Appeals
• Decided: May 20, 2013
• Docket: 96156
• Status: Published

Opinion

[Cite as State v. Fulton, 2013-Ohio-2087.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 96156

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

ROMEO FULTON DEFENDANT-APPELLANT

JUDGMENT: APPLICATION DENIED

Cuyahoga County Court of Common Pleas Case No. CR-537192 Application for Reopening Motion No. 464815

RELEASE DATE: May 20, 2013 APPELLANT

Romeo Fulton Inmate No. 594-228 Mansfield Correctional Institution P.O. Box 788 Mansfield, Ohio 44901

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor Marc D. Bullard Assistant County Prosecutor The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 MARY J. BOYLE, P.J.:

{¶1} On May 9, 2013, the applicant, 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. Fulton, 8th Dist. No. 96156, 2011-Ohio-4259, in which this court

affirmed Fulton’s convictions and sentences on multiple counts of aggravated robbery,

robbery, and kidnapping with three-year firearm specifications. Id. at ¶ 23. Fulton

received an aggregate prison sentence of six years. Id. at ¶ 24.

{¶2} Fulton maintains that his appellate counsel was ineffective for not arguing

additional sentencing issues, including challenges to the proportionality and consistency

of the sentence he received with reference to R.C. 2929.11(B). For the following

reasons, this court denies the application to reopen.

{¶3} 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. In the present

case, this court journalized its decision on August 25, 2011, and Fulton filed his

application on May 9, 2013, well beyond the 90-day limitation. Thus, it is untimely on its

face.

{¶4} Fulton does not argue or identify any basis for good cause that would allow

this court to consider his untimely application for reopening.

{¶5} 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 counsel continued to represent them, and their appellate

counsel 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,

imagination, and ignorance of the law do not establish good cause for failure to seek

timely relief under App.R. 26(B). Moreover, this court has denied applications to reopen

even if they are filed only two days late. State v. Gray, 8th Dist. No. 90981,

2009-Ohio-4360.

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

MARY J. BOYLE, PRESIDING JUDGE

SEAN C. GALLAGHER, J., and EILEEN A. GALLAGHER, J., CONCUR