State v. McSwain

2018 Ohio 1827

• Court: Ohio Court of Appeals
• Decided: May 7, 2018
• Docket: 105451
• Status: Published

Opinion

[Cite as State v. McSwain, 2018-Ohio-1827.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 105451

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

DORN McSWAIN DEFENDANT-APPELLANT

JUDGMENT: APPLICATION DENIED

Cuyahoga County Court of Common Pleas Case No. CR-16-609563-A Application for Reopening Motion No. 514908

RELEASE DATE: May 7, 2018 FOR APPELLANT

Dorn McSwain, pro se Inmate No. 692840 Noble Correctional Institution 15708 McConnelsville Road Caldwell, Ohio 43724

ATTORNEYS FOR APPELLEE

Michael C. O’Malley Cuyahoga County Prosecutor By: Katherine Mullin Assistant County Prosecutor 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113 PATRICIA ANN BLACKMON, J.:

{¶1} Dorn McSwain has filed an application for reopening pursuant to App.R.

26(B). McSwain is attempting to reopen the appellate judgment rendered in State v.

McSwain, 8th Dist. Cuyahoga No. 105451, 2017-Ohio-8489, that affirmed his conviction

and sentence for the offenses of rape, gross sexual imposition, and kidnaping, but

remanded to correct the sentencing journal entry to reflect what transpired at the

sentencing hearing regarding costs. We decline to reopen McSwain’s appeal.

{¶2} App.R. 26(B)(2)(b) requires that McSwain establish “a showing of good

cause for untimely filing if the application is filed more than 90 days after journalization

of the appellate judgment” that is subject to reopening. The Supreme Court of Ohio,

with regard to the 90-day deadline provided by App.R. 26(B)(2)(b), has established that:

[W]e now reject [the applicant’s] claims that those excuses gave good cause to miss the 90-day deadline in App.R. 26(B). * * * Consistent enforcement of the rule’s deadline by the appellate courts in Ohio protects on the one hand the state’s legitimate interest in the finality of its judgments and ensures on the other hand that any claims of ineffective assistance of appellate counsel are promptly examined and resolved.

Ohio and other states “may erect reasonable procedural requirements for triggering the right to an adjudication,” Logan v. Zimmerman Brush Co. (1982), 455 U.S. 422, 437, 102 S.Ct. 1148, 71 L.Ed.2d 265, and that is what Ohio has done by creating a 90-day deadline for the filing of applications to reopen. * * * The 90-day requirement in the rule is “applicable to all appellants,” State v. Winstead (1996), 74 Ohio St.3d 277, 278, 658 N.E.2d 722, and [the applicant] offers no sound reason why he — unlike so many other Ohio criminal defendants — could not comply with that fundamental aspect of the rule. (Emphasis added.) State v. Gumm, 103 Ohio St.3d 162, 2004-Ohio-4755, 814 N.E.2d

861, ¶ 7. See also State v. Lamar, 102 Ohio St.3d 467, 2004-Ohio-3976, 812 N.E.2d

970; State v. Cooey, 73 Ohio St.3d 411, 653 N.E.2d 252 (1995); State v. Reddick, 72 Ohio

St.3d 88, 647 N.E.2d 784 (1995).

{¶3} Herein, McSwain is attempting to reopen the appellate judgment that was

journalized on November 9, 2017. The application for reopening was not filed until

February 16, 2018, more than 90 days after journalization of the appellate judgment in

McSwain, supra. McSwain has failed to argue any showing of good cause for the

untimely filing of his application for reopening. State v. McCrimon, 8th Dist. Cuyahoga

No. 87617, 2017-Ohio-5742; State v. Battiste, 8th Dist. Cuyahoga No. 102299,

2017-Ohio-8300; State v. Hammond, 8th Dist. Cuyahoga No. 100656, 2016-Ohio-8300.

{¶4} Accordingly, the application for reopening is denied.

PATRICIA ANN BLACKMON, JUDGE

EILEEN A. GALLAGHER, A.J., and ANITA LASTER MAYS, J., CONCUR