State v. Grimes

2024 Ohio 1157

• Court: Ohio Court of Appeals
• Decided: March 25, 2024
• Docket: 110925
• Status: Published

Opinion

[Cite as State v. Grimes, 2024-Ohio-1157.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 110925 v. :

JEFFREY GRIMES, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: APPLICATION DENIED RELEASED AND JOURNALIZED: March 25, 2024

Cuyahoga County Court of Common Pleas Case Nos. CR-19-639447-B and CR-20-650118-A Application for Reopening Motion No. 570480

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Tasha L. Forchione, Assistant Prosecuting Attorney, for appellee.

Jeffrey Grimes, pro se.

ANITA LASTER MAYS, P.J.:

On December 15, 2023, the applicant, Jeffrey Grimes, 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. Grimes, 8th Dist. Cuyahoga No. 110925, 2022-Ohio-4526, in which this court affirmed his convictions for multiple

counts of rape with sexually violent predator specifications, sexual battery with

sexually violent predator specifications, pandering sexually oriented matter

involving a minor, and single counts of corrupting another with drugs, trafficking in

drugs, and drug possession. Grimes now asserts that his appellate counsel was

ineffective for not arguing (1) that the trial court did not make the necessary findings

to impose consecutive sentences and (2) that his convictions were not supported by

sufficient evidence and were against the manifest weight of the evidence, because he

did not personally engage in sexual acts with his underage son. On January 16,

2024, the state of Ohio filed its brief in opposition. For the following reasons, this

court denies the application.

The evidence at trial showed that Grimes through supplying his

15-year-old son with drugs and alcohol and through force and threat of force

compelled his girlfriend to engage in sexual conduct with his underage son.

Furthermore, Grimes video recorded these acts, which show him engaging in sexual

conduct with his girlfriend at the same time. The girlfriend testified about Grimes’s

physical aggression towards her and his threats if she did not engage in sexual acts

with the son. Grimes’s ex-wife and the mother of the son also testified to Grimes’s

angry nature and the fear he engendered. Grimes admitted this in an interrogation

that the police recorded. The jury convicted Grimes on all charges, and the judge

imposed an aggregate sentence of 65 years to life. Grimes’s initial counsel contacted Grimes about the appeal and filed

a brief. However, that attorney died before oral argument. This court appointed

new counsel who filed a new brief raising two assignments of error: (1) The trial

court erred in allowing evidence of Grimes’s anger and threats in violation of Evid.R.

404(B) and (2) Without the improper evidence, the convictions were against the

manifest weight of the evidence. This court affirmed the convictions on December

15, 2022.

App.R. 26(B)(1) and (2) require applications claiming ineffective

assistance of appellate counsel to be filed with 90 days from journalization unless

the applicant shows good cause for filing at a later time. In the present case, Grimes

filed his application one year after this court journalized its decision. Thus, it is

untimely on its face.

In an effort to show good cause, Grimes proffers that his second

appellate counsel never contacted him about the appointment, the new brief, or the

decision. He claims he only learned of this court’s decision when he received a letter

in October 2023, from a random attorney saying he read his appeal decision and

wanted to help him.

However, the failure of appellate counsel to communicate with a

client does not state good cause. In State v. Mitchell, 8th Dist. Cuyahoga No. 88977,

2009-Ohio-1874, ¶ 5, this court ruled that the failure to properly notify a client in a

timely manner about the outcome of the appeal does not state good cause. This

court reaffirmed that principle in State v. West, 8th Dist. Cuyahoga No. 92508, 2010-Ohio-5576, and State v. Alt, 8th Dist. Cuyahoga No. 96289, 2012-Ohio-2054.

Similarly, the lack of notice from the clerk about the decision does not state good

cause. Newburgh Hts. v. Chauncey, 8th Dist. Cuyahoga No. 75465, 2000 Ohio App.

LEXIS 6261 (Oct. 20, 2000).

Moreover, 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).

Thus, Grimes’s misplaced reliance on his appellate counsel and the clerk do not state

good cause.

Moreover, his proposed assignments of error are unpersuasive. The

trial court made the necessary findings to impose consecutive sentences at the

sentencing hearing and in the sentencing order. (Tr. 1048-1049 and the January

28, 2021 journal entry.) As to his argument that he could not be convicted on the sex charges because he did not personally engage in sexual conduct with his son, this

court noted in its opinion that the jury was instructed on Ohio’s complicity law that

allows a defendant to be found guilty and punished as if he were a principal offender.

Furthermore, this court in considering appellate counsel’s argument that if the

improper evidence were excluded, then the conviction would be against the manifest

weight of the evidence, noted that even when a substantial right is impacted and

after excluding the impermissible evidence, if there is overwhelming evidence of

guilt, then the admission of evidence may be deemed harmless. This court then

concluded that in applying this standard to the record before this court, the

admission was harmless.

Accordingly, this court denies the application to reopen.

________________________________ ANITA LASTER MAYS, PRESIDING JUDGE

MICHELLE J. SHEEHAN, J., and MICHAEL JOHN RYAN, J., CONCUR