State v. Holman

2012 Ohio 5705

• Court: Ohio Court of Appeals
• Decided: December 5, 2012
• Docket: 93870
• Status: Published

Opinion

[Cite as State v. Holman, 2012-Ohio-5705.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION Nos. 93869 and 93870

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

STEPHEN HOLMAN DEFENDANT-APPELLANT

JUDGMENT: APPLICATION DENIED

Cuyahoga County Common Pleas Court Case Nos. CR-500288 and CR-500286 Application for Reopening Motion No. 459703

RELEASE DATE: December 5, 2012 -i-

FOR APPELLANT

Stephen Holman Inmate No. 572-063 North Central Correctional Institution P.O. Box 1812 Marion, Ohio 43301-1812

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor By: Michael E. Jackson Assistant County Prosecutor 8th Floor Justice Center

1200 Ontario Street Cleveland, Ohio 44113 KENNETH A. ROCCO, P.J.:

{¶1} On October 26, 2012, the applicant, Stephen Holman, pursuant to App.R. 26(B),

applied to reopen this court’s judgment in State v. Holman, 8th Dist. Nos. 93869 and 93870,

2010-Ohio-4886, in which this court affirmed Holman’s convictions and sentences for various

counts of aggravated theft by deception, securing writings by deception, falsification, receiving

stolen property, telecommunications fraud, and forgery. Holman complains that his 1

appellate counsel was ineffective because he did not argue the exclusion of an expert witness,

and the impossibility of committing these crimes as a loan officer. For the following 2

reasons, this court denies the application.

{¶2} 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. The October 2012 application was filed

approximately two years after this court’s decision. Thus, it is untimely on its face. In an

effort to establish good cause, Holman states that in October 2010, his appellate counsel

informed him as follows: this court had affirmed the convictions and sentences; he had a

limited period of time to appeal to the Supreme Court of Ohio; if he desired further legal

1 A jury convicted Holman of these crimes for his role in a “mortgage fraud” scheme involving two pieces of property. 2 Holman argues that he could not have committed these acts as a loan officer, because on the date of certain transactions his temporary license as a loan officer had expired and he was no longer an employee of the involved mortgage broker. advice, he should retain private counsel or contact the public defender; and his attention to his

case was in his best interest. Holman continues that because he is a layman and indigent, he

sought legal advice in the prison’s library and appealed to the Supreme Court of Ohio, which

denied the appeal in May 2011. Holman then implies that he was then able to pursue his

App.R. 26(B) application.

{¶3} However, this fails to establish good cause for an untimely filing. 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, rejected this argument

and held that the ninety-day deadline for filing must be strictly enforced. In those cases, the

applicants argued that after the courts 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 ninety-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). Thus, Holman’s proffer that he could not

submit his application to reopen until the Supreme Court of Ohio had finished its review does

not state good cause. Furthermore, this court notes that pursuant to Holman’s Exhibit C1 to his application, he knew in December 2009, the arguments he raises now and that the Supreme

Court of Ohio denied his appeal approximately 15 months ago.

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

__________________________________________ KENNETH A. ROCCO, PRESIDING JUDGE

KATHLEEN ANN KEOUGH, J., and EILEEN A. GALLAGHER, J., CONCUR