State v. Moore

2011 Ohio 2143

• Court: Ohio Court of Appeals
• Decided: May 3, 2011
• Docket: 92654
• Status: Published

Opinion

[Cite as State v. Moore, 2011-Ohio-2143.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 92654

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

TERRANCE MOORE DEFENDANT-APPELLANT

JUDGMENT: APPLICATION DENIED

Cuyahoga County Common Pleas Court Case Nos. CR-427648 and CR-445445 Application for Reopening Motion No. 443348

RELEASE DATE: May 3, 2011 -i- 2

FOR APPELLANT

Terrance Moore, Pro Se Inmate No. 480-096 Marion Correctional Institution P.O. Box 57 Marion, Ohio 43301

ATTORNEYS FOR APPELLEE

William D. Mason Cuyahoga County Prosecutor

By: Allan T. Regas Assistant County Prosecutor 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113

KENNETH A. ROCCO, J.:

{¶ 1} Terrance Moore has filed an application for reopening pursuant to App.R.

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

Cuyahoga App. No. 92654, 2010-Ohio-770, which affirmed his conviction and sentence in

part, reversed the sentence in part, and remanded for resentencing. We decline to reopen

Moore’s appeal. 3 {¶ 2} App.R. 26(B)(2)(b) requires that Moore establish “a showing of good cause for

untimely filing if the application is filed more than 90 days after journalization of the appellate

judgment,” which is subject to reopening. The Supreme Court of Ohio, with regard to the

90-day deadline as provided by App.R. 26(B)(2)(b), has firmly established that:

{¶ 3} “We now reject [applicant’s] claim that those excuses gave him good cause to

miss the 90-day deadline in App.R. 26(B). The rule was amended to include the 90-day

deadline more than seven months before [applicant’s] appeal of right was decided by the court

of appeals in February 1994, so the rule was firmly established then, just as it is today.

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.

{¶ 4} “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. [Applicant] could have retained new attorneys

after the court of appeals issued its decision in 1994, or he could have filed the application on

his own. What he could not do was ignore the rule’s filing deadline. * * * The 90-day 4 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 Gumm 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, at

¶7.

{¶ 5} 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, 1995-Ohio-328, 653 N.E.2d 252; State v. Reddick, 72

Ohio St.3d 88, 1995-Ohio-249, 647 N.E.2d 784.

{¶ 6} Herein, Moore is attempting to reopen the appellate judgment that was

journalized on March 4, 2010. The application for reopening was not filed until April 1,

2011, more than 90 days after journalization of the appellate judgment in State v. Moore,

supra. Moore has failed to raise or establish “good cause” for the untimely filing of his

application for reopening. The failure to establish “good cause” mandates that this court

deny the application for reopening. State v. White (Jan. 31, 1991), Cuyahoga App. No.

57944, reopening disallowed (Oct. 19, 1994), Motion No. 249174; State v. Allen (Nov. 3,

1994), Cuyahoga App. No. 65806, reopening disallowed (July 8, 1996), Motion No. 267054.

See, also, State v. Moss (May 13, 1993), Cuyahoga App. Nos. 62318 and 62322, reopening

disallowed (Jan. 16, 1997), Motion No. 275838; State v. McClain (Aug. 3, 1995), Cuyahoga 5 App. No. 67785, reopening disallowed (Apr. 15, 1997), Motion No. 276811; State v. Russell

(May 9, 1996), Cuyahoga App. No. 69311, reopening disallowed (June 16, 1997), Motion No.

282351.

{¶ 7} In addition, lack of knowledge or ignorance of the time constraint, applicable to

an application for reopening per App.R. 26(B), does not provide sufficient cause for untimely

filing. State v. Klein (Mar. 28, 1991), Cuyahoga App. No. 58389, reopening disallowed

(Mar. 15, 1994), Motion No. 249260, affirmed (1994), 69 Ohio St.3d 1481; State v. Trammell

(July 13, 1995), Cuyahoga App. No. 67834, reopening disallowed (Apr. 22, 1996), Motion

No. 270493; State v. Travis (Apr. 5, 1990), Cuyahoga App. No. 56825, reopening

disallowed (Nov. 2, 1994), Motion No. 251073, affirmed (1995), 72 Ohio St.3d 317. See,

also, State v. Torres, Cuyahoga App. No. 86530, 2007-Ohio-3696, reopening disallowed (Jan.

3, 2007), Motion No, 390254; State v. Gaston (Feb. 7. 2002), Cuyahoga App. No. 79626,

reopening disallowed (Jan 17,2007), Motion No. 391555.

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

__________________________________ KENNETH A. ROCCO, JUDGE

PATRICIA ANN BLACKMON, P.J., and LARRY A. JONES, J., CONCUR 6