State v. Opalach

2014 Ohio 4922

• Court: Ohio Court of Appeals
• Decided: November 5, 2014
• Docket: 85540
• Status: Published

Opinion

[Cite as State v. Opalach, 2014-Ohio-4922.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

___________________________________

JOURNAL ENTRY AND OPINION No. 85540 ___________________________________

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

ROBERT OPALACH

DEFENDANT-APPELLANT

JUDGMENT: APPLICATION DENIED

Cuyahoga County Court of Common Pleas Case No. CR-03-444151-ZA Application for Reopening Motion No. 477665

RELEASE DATE: November 5, 2014 ATTORNEY FOR APPELLANT

David L. Doughten David L. Doughten Co., L.P.A. 4403 St. Clair Avenue Cleveland, OH 44103

ATTORNEY FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor Justice Center - 9th Floor 1200 Ontario Street Cleveland, OH 44113 SEAN C. GALLAGHER, P.J.:

{¶1} On August 15, 2014, the applicant, Robert Opalach, pursuant to App.R. 26(B),

applied to reopen this court’s judgment in State v. Opalach, 8th Dist. Cuyahoga No. 85540,

2005-Ohio-5563, in which this court affirmed his conviction for murder. Opalach argues that

his appellate counsel was ineffective for not arguing (1) that the principle of specific versus

general mandated that Opalach’s murder conviction be vacated and replaced with a conviction

for involuntary manslaughter; (2) that trial counsel should have requested a jury instruction for

involuntary manslaughter; (3) that the trial court erred in allowing improper other acts evidence;

and (4) that prosecutorial misconduct deprived him of a fair trial. 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 August 2014 application was filed

approximately nine years after this court’s decision. Thus, it is untimely on its face. In an

effort to establish good cause, Opalach states that he was not aware of App.R. 26(B), that his

assigned counsel did not inform him of that rule, and that had he known about it, he would have

timely applied to reopen this appeal. The courts have consistently ruled that lack of knowledge

or ignorance of the law does not provide sufficient cause for untimely filing. State v. Klein, 8th

Dist. Cuyahoga No. 58389, 1991 Ohio App. LEXIS 1346 (Mar. 28, 1991), reopening disallowed

(Mar. 15, 1994), motion No. 249260, aff’d, 69 Ohio St.3d 1481, 634 N.E.2d 1027 (1994).

Furthermore, in State v. Lamar 8th Dist. Cuyahoga Nos. 49550 and 49551, 1985 Ohio App.

LEXIS 7284 (Oct. 3, 1985), reopening disallowed (Nov. 15, 1995), motion No. 263398, this

court held that lack of communication with appellate counsel did not show good cause. Similarly in State v. White, 8th Dist. Cuyahoga No. 57944, 1991 Ohio App. LEXIS 357 (Jan. 31,

1991), reopening disallowed (Oct. 19, 1994), Motion No. 249174, and State v. Allen, 8th Dist.

Cuyahoga No. 65806, 1994 Ohio App. LEXIS 4956 (Nov. 3, 1994), reopening disallowed (July

8, 1996), motion No. 267054, this court rejected reliance on counsel as showing good cause.

{¶3} Moreover, these excuses do not explain the lapse of more than eight years. In State

v. Davis, 86 Ohio St.3d 212, 214, 1999-Ohio-160, 714 N.E.2d 384, the Supreme Court of Ohio

addressed a similar long lapse of time in filing the App.R. 26(B) application and ruled:

Even if we were to find good cause of earlier failures to file, any such good cause “has long since evaporated. Good cause can excuse the lack of a filing only while it exists, not for an indefinite period.” State v. Fox, 83 Ohio St.3d 514, 516, 1998-Ohio-517, 700 N.E.2d 1253, 1254.

In this, the court notes that Opalach’s current counsel represented him in a federal habeas corpus

action in 2008. Opalach v. Hudson, N.D.Ohio No. 1:07CV1893, 2008 U.S. Dist. LEXIS 73159

(Sept. 24, 2008).

Accordingly, this court denies the application to reopen.

SEAN C. GALLAGHER, PRESIDING JUDGE

EILEEN T. GALLAGHER, J., and MELODY J. STEWART, J., CONCUR