State v. Hurt

2012 Ohio 4268

• Court: Ohio Court of Appeals
• Decided: September 14, 2012
• Docket: 96032
• Status: Published

Opinion

[Cite as State v. Hurt, 2012-Ohio-4268.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 96032

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

WILLIE HURT DEFENDANT-APPELLANT

JUDGMENT: APPLICATION DENIED

Cuyahoga County Common Pleas Court Case No. CR-514257 Application for Reopening Motion No. 456110

RELEASE DATE: September 14, 2012

-i- FOR APPELLANT

Willie Hurt Inmate #563-360 Lorain Correctional Institution 2075 South Avon-Belden Road Grafton, OH 44044

ATTORNEYS FOR APPELLEE

Willliam D. Mason Cuyahoga County Prosecutor

By: Diane Smilanick Assistant County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 KENNETH A. ROCCO, J.:

{¶1} In State v. Hurt, Cuyahoga C.P. No. CR-514257, applicant, Willie Hurt, pled

guilty to rape and gross sexual imposition. The entry memorializing his plea and

imposing a sentence was journalized on March 19, 2009. On November 17, 2010, Hurt

filed an appeal pro se and this court denied his motion for leave to file notice of appeal

out of rule (instanter) and dismissed the appeal in State v. Hurt, 8th Dist. No. 96032,

Entry Nos. 439452 and 439502 (Nov. 22, 2010).

{¶2} Hurt has filed with the clerk of this court an application for reopening. He

asserts that he was denied the effective assistance of appellate counsel, despite the fact

that he represented himself in his direct appeal. We deny the application for reopening.

As required by App.R. 26(B)(6), the reasons for our denial follow.

{¶3} Initially, we note that App.R. 26(B)(1) provides, in part: “An application for

reopening shall be filed * * * within ninety days from journalization of the appellate

judgment unless the applicant shows good cause for filing at a later time.” App.R.

26(B)(2)(b) requires that an application for reopening include “a showing of good cause

for untimely filing if the application is filed more than ninety days after journalization of

the appellate judgment.” {¶4} This court’s decision dismissing Hurt’s appeal was journalized on November

22, 2010. The application was filed on June 18, 2012, clearly in excess of the ninety-day

limit. Hurt does not argue or demonstrate good cause for the untimely filing of his

application for reopening. Compare State v. Welch, 8th Dist. No. 95577,

2012-Ohio-3351 (denying an application for reopening as untimely when the applicant

failed to argue or establish good cause under App.R. 26(B)(2)(b)).

{¶5} The Supreme Court has upheld judgments denying applications for reopening

solely on the basis that the application was not timely filed and the applicant failed to

show “good cause for filing at a later time.” App.R. 26(B)(1). See, e.g., State v.

Gumm, 103 Ohio St.3d 162, 2004-Ohio-4755, 814 N.E.2d 861, and State v. LaMar, 102

Ohio St.3d 467, 2004-Ohio-3976, 812 N.E.2d 970. Applicant’s failure to demonstrate

good cause is a sufficient basis for denying the application for reopening. See, e.g.,

State v. Almashni, 8th Dist. No. 92237, 2010-Ohio-898, reopening disallowed,

2012-Ohio-349.

{¶6} Additionally, Hurt represented himself in his direct appeal in Hurt, 8th Dist.

No. 96032. “A defendant who represents himself or herself on direct appeal, however,

may not maintain an application for reopening. State v. Gaston, Cuyahoga App. No.

92242, 2009-Ohio-3080, reopening disallowed, 2009- Ohio-4715.” State v. Effinger, 8th

Dist. No. 93450, 2009-Ohio-5242, ¶ 4.

{¶7} As a consequence, Hurt has not met the standard for reopening. {¶8} Accordingly, the application for reopening is denied.

_________________________________ KENNETH A. ROCCO, JUDGE

PATRICIA ANN BLACKMON, A.J., and KATHLEEN ANN KEOUGH, J., CONCUR