State v. Orr

2020 Ohio 4913

• Court: Ohio Court of Appeals
• Decided: October 9, 2020
• Docket: 100841
• Status: Published

Opinion

[Cite as State v. Orr, 2020-Ohio-4913.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 100841 v. :

DARLLEL B. ORR, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: APPLICATION DENIED RELEASED AND JOURNALIZED: October 9, 2020

Cuyahoga County Court of Common Pleas Case No. CR-12-560637-A Application for Reopening Motion No. 541320

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney and Brent Kirvel, Assistant Prosecuting Attorney, for appellee.

Darllel B. Orr, pro se.

MARY J. BOYLE, P.J.:

On September 23, 2020, the applicant, Darllel Orr, pursuant to

App.R. 26(B) applied to reopen this court’s judgment in State v. Orr, 8th Dist.

Cuyahoga No. 100841, 2014-Ohio-4680, in which this court affirmed Orr’s convictions for aggravated murder, kidnapping, aggravated robbery, aggravated

burglary, and having a weapon while under disability. Orr also seeks relief under

Civ.R. 60(B)(5). For the following reasons, this court denies the application and

relief under Civ.R. 60(B).

In the early morning of October 10, 2011, two armed men entered a

house occupied by five people. One of those, a 15-year-old girl, testified that two

men pointed handguns in her face and asked if there was any money in the house.

Subsequently, the intruders shot and killed a man who was living in the house. A

mask found in the house after the incident contained Orr’s DNA.

Before trial, Orr made a pro se motion to exclude warrantless consent

waiver. After a trial to the bench, the judge found him guilty of the above offenses

and sentenced him to life without parole. Orr’s appellate counsel argued lack of

jurisdiction because of an improper jury waiver, failure of compulsory process,

sufficiency of the evidence, and manifest weight. This court also considered Orr’s

two supplemental pro se briefs in which he argued, inter alia, lack of jurisdiction

because there was no valid complaint, violation of his right to confrontation,

denial of a speedy trial, improperly inducing him to waive his right to a jury trial,

and prosecutorial misconduct.

Orr then timely filed an App.R. 26(B) application to reopen and

argued that his appellate counsel was ineffective for not arguing the improprieties

of a cheek swab taken for DNA identification. This court denied the application on

the basis of res judicata. Because Orr filed his own pro se brief, he could also have included his DNA consent argument. State v. Orr, 8th Dist. Cuyahoga No. 100841,

2014-Ohio-5274.

Now Orr resurrects his DNA consent argument. He argues that

because he now has the transcript of pretrial proceedings, he can establish the

validity of the argument. The transcript indicates that early in the pretrial process

before the DNA swab, Orr “lawyered up.” Thus, he argues that as a corollary the

subsequent DNA swab must have been extracted through coercion and should have

been suppressed.

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. Orr filed

the present application approximately six years after this court’s decision. Thus,

it is untimely on its face.

Delays in obtaining the transcripts do not state good cause. State v.

Davenport, 8th Dist. Cuyahoga No. 106143, 2019-Ohio-4156. Moreover, a review of

the transcript indicates that Orr, pro se, was questioning the police officers about

“lawyering up” and the DNA swab. Thus, he knew about this argument, even

without the actual transcript pages. Orr does not establish good cause. 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. Thus,

the court denies the application as untimely. Moreover, the Supreme Court of Ohio in State v. Twyford, 106 Ohio St.3d 176, 2005-Ohio-4380, 833 N.E.2d 289, held

that successive applications are not allowed.

Res judicata also properly bars this application. In State v.

Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204 (1992), the Supreme Court of Ohio

ruled that res judicata may bar a claim of ineffective assistance of appellate counsel

unless circumstances render the application of the doctrine unjust. Because Orr

filed his own appellate brief and raised his own assignments of error, because he had

pro se raised the issue in the trial court, and because he raised the issue in a previous

App.R. 26(B) application, it is not unjust to apply the doctrine and bar this

application.

To the extent that Orr seeks relief under Civ.R. 60(B)(5), any other

reason justifying relief from judgment, his motion is not well-founded. Civil

procedure remedies generally do not apply at the appellate level, and this court after

reviewing the material is not persuaded to grant relief.

Application denied.

MARY J. BOYLE, PRESIDING JUDGE

FRANK D. CELEBREZZE, JR., J., and MICHELLE J. SHEEHAN, J., CONCUR