State v. Hurt

2014 Ohio 2636

• Court: Ohio Court of Appeals
• Decided: June 18, 2014
• Docket: 96032
• Status: Published

Opinion

[Cite as State v. Hurt, 2014-Ohio-2636.]

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 Court of Common Pleas Case No. CR-514257 Application for Reopening Motion No. 474601

RELEASE DATE: June 18, 2014

-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} On May 7, 2014, the applicant, Willie Hurt, 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. Hurt, 8th Dist. Cuyahoga No. 96032, Entry Nos. 439452 and

439502 (Nov. 22, 2010), in which this court denied Hurt’s pro se November 17, 2010

motion for leave to file notice of appeal out of rule.1 Hurt alleges that his appellate

counsel should have argued the invalidity of the indictment and ineffective assistance of

trial counsel. For the following 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. Hurt filed the

instant application approximately three-and-a-half years after this court’s denial of this

motion for a delayed appeal. Thus, it is untimely on its face, and Hurt proffers no good

cause for his untimely filing.

{¶3} Moreover, in State v. Hurt, 8th Dist. Cuyahoga No. 96032, 2012-Ohio-4268,

Hurt previously filed an App.R. 26(B) application to reopen. This court denied the

application as untimely. It also ruled that because Hurt had represented himself in filing

the motion for delayed appeal, he could not maintain a claim for ineffective assistance of

appellate counsel. Again, Hurt, pro se, has filed an untimely application, which is

1 In State v. Hurt, Cuyahoga C.P. No. CR-514257, Hurt pleaded guilty to one count each of rape and gross sexual imposition. On March 19, 2009, the trial court sentenced him to 18 years imprisonment. stillborn. Additionally, the Supreme Court of Ohio has ruled that App.R. 26(B) does not

permit successive applications. State v. Slagle, 97 Ohio St.3d 332, 2002-Ohio-6612, 779

N.E.2d 1041.

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

________________________________________ KENNETH A. ROCCO, JUDGE

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