State v. Harrell

2024 Ohio 725

• Court: Ohio Court of Appeals
• Decided: February 28, 2024
• Docket: 111293
• Status: Published

Opinion

[Cite as State v. Harrell, 2024-Ohio-725.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 111293 v. :

DEVAL H. HARRELL, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: APPLICATION DENIED RELEASED AND JOURNALIZED: February 28, 2024

Cuyahoga County Court of Common Pleas Case No. CR-21-656650-A Application for Reopening Motion No. 571079

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Frank Romeo Zeleznikar, Assistant Prosecuting Attorney, for appellee.

Deval Harrell, pro se.

MICHAEL JOHN RYAN, J.:

On January 9, 2024, the applicant, Deval Harrell, pursuant to App.R.

26(B), applied to reopen this court’s judgment in State v. Harrell, 8th Dist.

Cuyahoga No. 111293, 2022-Ohio-3740, in which this court affirmed Harrell’s convictions and sentences for felonious assault, kidnapping, and failure to comply.

Harrell now maintains that his appellate counsel should have argued the following:

(1) He was subjected to an unreasonable seizure in violation of the Fourth

Amendment of the United States Constitution and Article I, Section 10 of the Ohio

Constitution; (2) The trial court abused its discretion when it denied his request for

a new attorney; (3) The trial court erred in instructing the jury on the definitions of

“physical harm” and “serious physical harm”; (4) The trial court erred in failing to

make an allied offense analysis; (5) The trial court erred in failing to instruct on

lesser included offenses; (6) The trial court erred in failing to grant a mistrial

because of the prosecution’s improper opening and closing statements; and (7)

Harrell was deprived of the effective assistance of trial counsel. The state of Ohio

filed its brief in opposition on January 11, 2024. For the following reasons, this court

denies the application to reopen.

On the night of January 29, 2021, Harrell drove into a gas station and

asked a lady “if she would like to party.” She got into his car believing that she would

engage in a drug transaction. Law enforcement officers saw this and concluded that

the parties were engaging in a drug transaction. The officers surrounded Harrell’s

car, and one officer went to the driver’s side door and instructed him to put his car

in park and turn off the engine. Instead, Harrell put the car in reverse, hit a police

car, and then sped out of the gas station. In doing so, he briefly pinned an officer to

another car. Shortly after that, Harrell crashed his car and fled on foot. The lady was still in the car, and law enforcement had to extract her by breaking a rear

window. Officers caught Harrell approximately 30 minutes later.

A jury found Harrell guilty of felonious assault, kidnapping, and

failure to comply with an officer’s instruction. The judge imposed an aggregate

eight-year sentence. Harrell’s appellate counsel argued that there was insufficient

evidence to support the felonious assault and kidnapping charges, that the trial court

erred in allowing improper cross-examination on Harrell’s prior convictions, and

that the trial court erred in relying on old presentence-investigation reports. This

court affirmed, and Harrell’s appellate attorney after notifying Harrell of the

decision endeavored to appeal to the Ohio Supreme Court.

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. This court

journalized its decision on October 20, 2022, but Harrell did not file his application

until January 9, 2024. Thus, it is untimely on its face.

In an effort to show good cause, Harrell argues that his appellate

counsel failed to advise him about App.R. 26(B). However, this court has rejected

this as good cause. Generally, the failure of counsel to communicate with the client

does not state good cause. State v. White, 8th Dist. Cuyahoga No. 101576, 2017-

Ohio-7169, and State v. Morgan, 8th Dist. Cuyahoga No. 55341, 2007-Ohio-5532.

Furthermore, reliance on counsel does not state good cause. State v. Huber, 8th

Dist. Cuyahoga No. 93923, 2011-Ohio-62. Specifically, the failure of counsel to inform the client of App.R. 26(B) does not provide good cause. State v. Alt, 8th Dist.

Cuyahoga No. 96289, 2012-Ohio-2054; State v. Pruit, 8th Dist. Cuyahoga Nos.

86707 and 86986, 2012-Ohio-94; and State v. Van Horn, 8th Dist. Cuyahoga No.

98751, 2021-Ohio-4129.

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, the lack of communication between Harrell and his counsel, his misplaced

reliance on his appellate counsel, and his ignorance of the law do not state good

cause. Accordingly, this court denies the application to reopen.

MICHAEL JOHN RYAN, JUDGE

SEAN C. GALLAGHER, P.J., and EMANUELLA D. GROVES, J., CONCUR