State v. Jeffries

2019 Ohio 4255

• Court: Ohio Court of Appeals
• Decided: October 16, 2019
• Docket: 106889
• Status: Published

Opinion

[Cite as State v. Jeffries, 2019-Ohio-4255.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 106889 v. :

MAIKIA JEFFRIES, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: APPLICATION DENIED RELEASED AND JOURNALIZED: October 16, 2019

Cuyahoga County Court of Common Pleas Case No. CR-16-610609-A Application for Reopening Motion No. 530238

Appearances:

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

Maikia Jeffries, pro se.

ANITA LASTER MAYS, J.:

On July 15, 2019, the applicant, Maikia Jeffries, 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. Jeffries, 8th Dist. Cuyahoga No. 106889, 2018-Ohio-5039, in which this court affirmed his convictions for two counts of

kidnapping and two counts of gross sexual imposition. Jeffries now claims that his

appellate counsel should have argued that the admission of the social worker’s

testimony and his trial counsel’s ineffective cross-examination of his daughter

denied Jeffries his Sixth Amendment right to confrontation pursuant to Crawford

v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).1 The state filed

its brief in opposition on August 2, 2019, and Jeffries filed a reply brief on

August 16, 2019. For the following reasons, this court denies the application.

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 July

2019 application was filed approximately seven months after this court’s

December 13, 2018 decision. Thus, it is untimely on its face.

To show good cause, Jeffries argues that his appellate counsel failed

to send him the case records, including the transcript, until after the 90-day period

had lapsed. He continues that the right to a transcript flows from the Sixth

Amendment right to proceed pro se. Green v. Brigano, 123 F.3d 917 (6th Cir.1997).

Thus, the failure to have a transcript necessarily states good cause. He also argues

that he timely filed the application pursuant to App.R. 26(B)(5), which provides that

1During a bench trial, Jeffries’s daughter testified that Jeffries had sexually abused her four times. A social worker also testified as to what the daughter had told her. Appellate counsel argued that the trial court abused its discretion in permitting the social worker to testify about the daughter’s hearsay statements. the application to reopen shall be granted if there is a genuine issue as to whether

the applicant was deprived of the effective assistance of appellate counsel.

The court is not persuaded that these reasons state good cause.

Generally, reliance on one’s counsel does not state good cause for untimely filing. In

State v. Mitchell, 8th Dist. Cuyahoga No. 88977, 2009-Ohio-1874, and State v. Alt,

8th Dist. Cuyahoga No. 96289, 2012-Ohio-2054, this court held that counsel’s

failure to inform the appellant of this court’s decision was not good cause. Similarly,

ignorance of the court’s decision does not state good cause. State v. West, 8th Dist.

Cuyahoga No. 92508, 2010-Ohio-5576. This court has ruled that an attorney’s

conduct in accepting a retainer to file an App.R. 26(B) application but then never

doing so did not state good cause. State v. Wilcox, 8th Dist. Cuyahoga No. 96079,

2013-Ohio-2895, and State v. Logan, 8th Dist. Cuyahoga No. 63943, 2000 Ohio

App. LEXIS 5327 (Nov. 14, 2000).

Delays in obtaining the transcript also do not provide good cause.

This court rejected that argument ruling that “being a layman and experiencing

delays in obtaining records related to one’s conviction are not sufficient bases for

establishing good cause for untimely filing of an application for reopening.” State v.

Towns, 8th Dist. Cuyahoga No. 71244, 2000 Ohio App. LEXIS 2030, *3 (May 4,

2000). Furthermore, a refusal of an attorney to send a copy of the transcript does

not state good cause. In State v. Rudd, 8th Dist. Cuyahoga No. 102754, 2018-Ohio-

1383, the applicant alleged that he had to file a grievance against his attorney to

obtain a copy of the transcript, and this court held that Rudd had not shown good cause. In State v. Alt, 8th Dist. Cuyahoga No. 96289, 2012-Ohio-2054, and State v.

Day, 8th Dist. Cuyahoga No. 83138, 2010-Ohio-3862, this court ruled that the

inability to secure transcripts through appellate counsel does not state good cause.

Jeffries’s reliance on Green is misplaced. In that case, the federal

court addressed the problem of not having a transcript for the direct appeal. Ohio

law is clear. For purposes of App.R. 26(B) and Murnahan, delays in obtaining or

the absence of a transcript or other records do not provide 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, 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).

Jeffries’s claim that his application is timely because he has raised a

genuine issue concerning the effectiveness of appellate counsel is also not well taken. This court rejected that argument in State v. Howard, 8th Dist. Cuyahoga No.

97695, 2016-Ohio-8298. In that case, Howard argued that it would be unjust to

deny an application to reopen because of a procedural defect when a genuine issue

is shown. Howard cited to older cases upholding such a position. This court ruled

that those earlier cases are no longer reliable in light of Gumm and LaMar. The

Supreme Court of Ohio made it very clear that an applicant must show extraordinary

reasons for not filing timely. The claim of a “dead bang winner” is not enough. State

v. Porter, 8th Dist. Cuyahoga No. 102257, 2018-Ohio-1178, and State v. Willis, 8th

Dist. Cuyahoga No. 101052, 2018-Ohio-159.

Accordingly, this court denies the application to reopen.

ANITA LASTER MAYS, JUDGE

SEAN C. GALLAGHER, P.J., and FRANK D. CELEBREZZE, JR., J., CONCUR