State v. Jordan

2013 Ohio 162

• Court: Ohio Court of Appeals
• Decided: January 18, 2013
• Docket: 91413
• Status: Published

Opinion

[Cite as State v. Jordan, 2013-Ohio-162.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 91413

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

MOORIS JORDAN DEFENDANT-APPELLANT

JUDGMENT: APPLICATION DENIED

Cuyahoga County Common Pleas Court Case No. CR-497993 Application for Reopening Motion No. 461134

RELEASE DATE: January 18, 2013 FOR APPELLANT

Mooris C. Jordan, Pro Se Inmate No. 544823 Lorain Correctional Institution 2075 S. Avon Belden Road Grafton, OH 44044

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor

BY: Katherine Mullin Assistant County Prosecutor The Justice Center 1200 Ontario Street, 8th Floor Cleveland, OH 44113 MELODY J. STEWART, A.J.:

{¶1} On December 20, 2012, the applicant, Mooris Jordan, 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. Jordan, 8th Dist. No. 91413, 2009-Ohio-4037, in

which this court affirmed Jordan’s conviction for rape, but remanded to correct the

sentencing entry concerning postrelease control.1 Jordan now contends that his appellate

counsel was ineffective because he did not argue the following: (1) the sentence was an

improper, disproportionate, unconstitutional sentence violating due process and was cruel

and unusual punishment; (2) trial counsel was ineffective for failing to object to the

improper sentence; and (3) trial counsel was ineffective for not arguing for a lesser

included offense. Additionally, appellate counsel was ineffective because he prevented

Jordan from assisting in his own appeal. For the following reasons, this court denies the

application to reopen.

{¶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 December

The jury found Jordan guilty of rape of a minor under the age of ten years old by compelling 1

the victim to submit by force or threat of force. Pursuant to R.C. 2907.02(B), the trial judge sentenced Jordan to life imprisonment without parole. 20, 2012 application was filed approximately three years and four months after this

court’s decision. Thus, it is untimely on its face.

{¶3} In an effort to show good cause, Jordan argues that he is indigent and cannot

hire an attorney, that he has limited education and a limited understanding of the law, and

that his appellate counsel refused to send him a copy of the transcripts, thus depriving him

of his ability to form an argument. He also relies upon State v. Chu, 8th Dist. Nos.

75583 and 75689, 2002-Ohio-4422, in which this court indicated that an application to

reopen may be granted if there was a genuine issue as to the effectiveness of appellate

counsel, even if the applicant did not proffer a cause for untimely filing. However, these

arguments do not establish good cause.

{¶4} This court has repeatedly held that difficulty in obtaining the transcript does

not constitute good cause. In State v. Towns, 8th Dist. No. 71244, 1997 Ohio App.

LEXIS 4709 (Oct. 23, 1997), reopening disallowed, 2000 Ohio App. LEXIS 2030 (May

4, 2000), the applicant endeavored to show good cause for untimely filing by arguing that

his counsel was uncooperative and refused to send him any documents concerning the

case. 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.” Id. at 3.

State v. Bussey, 8th Dist. No. 75301, 1999 Ohio App. LEXIS 5707 (Dec. 2, 1999),

reopening disallowed, 2000 Ohio App. LEXIS 3614 (Aug. 8, 2000); Newburgh Hts. v.

Chauncey, 8th Dist. No. 75465, 1999 Ohio App. LEXIS 3732 (Aug. 12, 1999), reopening disallowed, 2000 Ohio App. LEXIS 6261 (Oct. 20, 2000); State v. Chandler, 8th Dist.

No. 59764, 1992 Ohio App. LEXIS 975 (Mar. 5, 1992), reopening disallowed, 2001 Ohio

App. LEXIS 3624 (Aug. 13, 2001) — counsel’s delays in sending applicant the transcript

and refused access to parts of the transcript did not state good cause.

{¶5} 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 legal

training, effort, and imagination and ignorance of the law does not establish good cause

for failure to seek timely relief under App.R. 26(B). Thus, Jordan’s reliance on the

earlier decision of Chu is misplaced.

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

MELODY J. STEWART, ADMINISTRATIVE JUDGE MARY J. BOYLE, J., and TIM McCORMACK, J., CONCUR