State v. Gonzalez

2013 Ohio 3359

• Court: Ohio Court of Appeals
• Decided: July 30, 2013
• Docket: 96102
• Status: Published

Opinion

[Cite as State v. Gonzalez, 2013-Ohio-3359.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 96102

STATE OF OHIO PLAINTIFF-APPELLEE

vs

EDGAR GONZALEZ DEFENDANT-APPELLANT

JUDGMENT: APPLICATION DENIED

Cuyahoga County Court of Common Pleas Case No. CR-504595 Application for Reopening Motion No. 465891

RELEASED DATE: July 30, 2013 -i- ATTORNEYS FOR APPELLANT

Brian R. McGraw The Standard Building 1370 Ontario Street Suite 200 Cleveland, Ohio 44113

Harvey B. Bruner Harvey B. Bruner Co., L.PA. The Hoyt Block Building 700 W. St. Clair Avenue, #110 Cleveland, Ohio 44113

Edgar Gonzalez Inmate No. 593-445 Mansfield Correctional Inst. P. O. Box 788 Mansfield, Ohio 44901

ATTORNEYS FOR APPELLEE

Timothy McGinty Cuyahoga County Prosecutor

By: Kevin R. Filiatraut James M. Price Brian R. Radigan Assistant County Prosecutors 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113 PATRICIA ANN BLACKMON, J.:

{¶1} Edgar Gonzalez has filed an application for reopening pursuant to App.R.

26(B). Gonzalez is attempting to reopen the appellate judgment, as rendered in State v.

Gonzalez, 8th Dist. No. 96102, 2011-Ohio-5253, which affirmed his conviction for the

offenses of aggravated robbery and felonious assault. We decline to reopen Gonzalez’s

appeal.

{¶2} App.R. 26(B)(2)(b) requires that Gonzalez establish “a showing of good

cause for untimely filing if the application is filed more than 90 days after

journalization of the appellate judgment,” which is subject to reopening. The

Supreme Court of Ohio, with regard to the 90-day deadline as provided by App.R.

26(B)(2)(b), has recently established that:

We now reject [the applicant’s] claims that those excuses gave good cause to miss the 90-day deadline in App.R. 26(B).* * * 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.

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 90-day requirement in the rule is applicable to all appellants, State v. Winstead (1996), 74 Ohio St.3d 277, 278, 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. (Emphasis added.) State v. Gumm, 103 Ohio St.3d 162, 2004-Ohio-4755, 814 N.E.2d 861, at ¶ 7. See also State v. Lamar, 102 Ohio St.3d 467, 2004-Ohio-3976, 812 N.E.2d 970; State v. Cooey, 73 Ohio St.3d 411, 1995-Ohio-328, 653 N.E.2d 252; State v. Reddick, 72 Ohio St.3d 88, 1995-Ohio-248, 647 N.E.2d 784.

{¶3} See also State v. LaMar, 102 Ohio St.3d 467, 2004-Ohio-3976, 812 N.E.2d

970; State v. Cooey, 73 Ohio St.3d 411, 1995-Ohio-328, 653 N.E.2d 252; State v. Reddick,

72 Ohio St.3d 88, 1995-Ohio-249, 647 N.E.2d 784.

{¶4} Herein, Gonzalez is attempting to reopen the appellate judgment that was

journalized on October 13, 2011. The application for reopening was not filed until June

18, 2013, more than 90 days after journalization of the appellate judgement in State v.

Gonzalez, supra. Gonzalez has failed to establish “a showing of good cause” for the

untimely filing of his application for reopening. State v. Klein, 8th Dist. No. 58389, Ohio

App. LEXIS 1346 (Apr. 8, 1991), reopening disallowed (Mar. 15, 1994), Motion No.

49260, aff’d, 69 Ohio St.3d 1481, 634 N.E.2d 1027 (1994); State v. Trammell, 8th Dist.

No. 67834, 1995 Ohio App. LEXIS 2962 (July 24, 1995), reopening disallowed (Apr.

22, 1996), Motion No. 70493; State v. Travis, 8th Dist. No. 56825, 1990 Ohio

App. LEXIS 1356 (Apr. 5, 1990), reopening disallowed (Nov. 2, 1994), Motion No.

51073, aff’d, 72 Ohio St.3d 317, 1995-Ohio-152, 649 N.E.2d 1226. See also State v.

Gaston, 8th Dist. No. 79626, 2007 Ohio-155; State v. Torres, 8th Dist. No. 86530,

2007-Ohio-9. {¶5} Accordingly, the application for reopening is denied.

PATRICIA ANN BLACKMON, JUDGE

EILEEN A. GALLAGHER, P.J., and TIM McCORMACK, J., CONCUR