State v. Messenheimer

2024 Ohio 5017

• Court: Ohio Court of Appeals
• Decided: October 9, 2024
• Docket: 22 MA 0037
• Status: Published

Opinion

[Cite as State v. Messenheimer, 2024-Ohio-5017.]

IN THE COURT OF APPEALS OF OHIO SEVENTH APPELLATE DISTRICT MAHONING COUNTY

STATE OF OHIO,

Plaintiff-Appellee,

v.

TRAVIS MESSENHEIMER,

Defendant-Appellant.

OPINION AND JUDGMENT ENTRY Case No. 22 MA 0037

Motion to Reopen

BEFORE: Cheryl L. Waite, Carol Ann Robb, Mark A. Hanni, Judges.

JUDGMENT: Denied.

Atty. Gina DeGenova, Mahoning County Prosecutor and Atty. Edward A. Czopur, Assistant Prosecutor, for Plaintiff-Appellee

Travis Messenheimer, Pro se, Defendant-Appellant.

Dated: October 9, 2024 –2–

PER CURIAM.

{¶1} On May 9, 2024, Appellant Travis Messenheimer filed a pro se application

for reopening of his direct appeal in which we affirmed his conviction for rape and gross

sexual imposition. A criminal defendant may apply for reopening of a direct appeal based

on a claim of ineffective assistance of appellate counsel. App.R. 26(B)(1). It is insufficient

for the applicant seeking reopening to merely allege that appellate counsel rendered

ineffective assistance for failing to brief certain issues. Instead, the application must

demonstrate that there is a "genuine issue as to whether the applicant was deprived of

the effective assistance of counsel on appeal." App.R. 26(B)(5).

{¶2} Pursuant to App.R. 26(B)(1), Appellant was required to file his application

for reopening within 90 days of the journalization of our judgment entry. “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.” State v. Gumm, 2004-Ohio-4755, ¶ 7.

{¶3} Our Opinion in this matter was filed and journalized on June 30, 2023.

Appellant's application was filed nearly one year later. If the application for reopening is

not filed within 90 days, the applicant must make a showing of good cause justifying the

delay in filing. State v. Dew, 2012-Ohio-434, ¶ 6 (7th Dist.). Appellant does not address

in any way his delay in filing the application. Therefore, the application must be denied.

{¶4} Even if the application was timely filed, it must be overruled. The issue that

Appellant claims his appellate counsel failed to raise was that of ineffective assistance of

trial counsel. However, this very issue was raised in Appellant's assignment of error in

Case No. 22 MA 0037 –3–

the direct appeal. Appellant simply seeks for us to take a further look at the question

raised on direct appeal. This is not the purpose of an application for reopening.

{¶5} Additionally, Appellant filed an appeal of our decision to the Ohio Supreme

Court and the appeal has been denied. State v. Messenheimer, 2023-Ohio-3328. Since

the matter of ineffective assistance of trial counsel was litigated on appeal and further

appeal was denied by the Ohio Supreme, the matter is res judicata and cannot again be

reviewed under the guise of an untimely filed application for reopening. State v. Sanders,

2004-Ohio-6846, ¶ 7 (8th Dist.).

{¶6} Due to Appellant's untimely filing of the application for reopening, his failure

to sufficiently raise any question of ineffective assistance of appellate counsel, and on the

basis of res judicata, the application for reopening is denied.

JUDGE CHERYL L. WAITE

JUDGE CAROL ANN ROBB

JUDGE MARK A. HANNI

Case No. 22 MA 0037