State v. Paige

2020 Ohio 481

• Court: Ohio Court of Appeals
• Decided: February 7, 2020
• Docket: 17 MA 0033
• Status: Published

Opinion

[Cite as State v. Paige, 2020-Ohio-481.]

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

STATE OF OHIO,

Plaintiff-Appellee,

v.

MICHAEL PAIGE,

Defendant-Appellant.

OPINION AND JUDGMENT ENTRY Case No. 17 MA 0033

Delayed Application for Reopening Direct Appeal

BEFORE: Cheryl L. Waite, Gene Donofrio, Carol Ann Robb, Judges.

JUDGMENT: Denied.

Atty. Paul J. Gains, Mahoning County Prosecutor and Atty. Ralph M. Rivera, Assistant Prosecuting Attorney, 21 West Boardman Street, 6th Floor, Youngstown, Ohio 44503, for Plaintiff-Appellee

Michael Paige, Pro se, #A693-310, Lake Erie Correction Institution, 501 Thompson Road , Conneaut, Ohio 44030.

Dated: February 7, 2020 –2–

PER CURIAM.

{¶1} Appellant Michael Paige has filed a delayed application to reopen his appeal

based on ineffective assistance of appellate counsel for failing to obtain transcripts from

previous trials to support a double jeopardy claim. For the reasons provided, Appellant’s

application for reopening is denied.

Factual and Procedural History

{¶2} Appellant was indicted on March 8, 2012, on one count of aggravated

murder in violation of R.C. 2903.01(A), (F), an unclassified felony; an accompanying

firearm specification in violation of R.C. 2941.145(A); one count of murder in violation of

R.C. 2903.02(A), (D), an unclassified felony; an accompanying firearm specification in

violation of R.C. 2941.145(A); two counts of tampering with evidence in violation of R.C.

2921.12(A)(1), (B), felonies of the third degree; and one count of obstructing justice in

violation of R.C. 2921.32(A)(5), (C)(4), a felony of the third degree.

{¶3} The charges stemmed from an incident that occurred on March 1, 2012

when Munir Blake (“Blake”) was shot and killed on the first floor of the duplex where he

resided while Appellant had been visiting Jasmin Fletcher, who resided on the second

floor of the duplex. Blake and Fletcher had an ongoing dispute regarding Fletcher stealing

Blake’s electricity. After an investigation and Appellant’s subsequent confession to police,

he was arrested.

{¶4} A jury trial commenced on February 24, 2014. The jury found Appellant not

guilty of aggravated murder. This jury was unable to reach a unanimous verdict on the

Case No. 17 MA 0033 –3–

remaining charges. The trial court declared a mistrial on these charges and discharged

the jury.

{¶5} A second jury trial commenced on January 11, 2016. In a judgment entry

dated January 13, 2016, the trial court sua sponte declared a mistrial after the jury was

empaneled because Appellant filed a habeas corpus proceeding naming the assistant

prosecuting attorney as a defendant in the United States District Court for the Northern

District of Ohio.

{¶6} A third jury trial took place on January 3, 2017. The jury returned a guilty

verdict on the murder charge and the firearm specification, and also on the charge of

tampering with the evidence. The trial court sentenced Appellant to life imprisonment

with parole eligibility after fifteen years for the murder conviction, three years for

tampering with evidence to be served concurrently with the sentence imposed for murder,

and three years for the firearm specification, to be served consecutively to the sentence

imposed for the murder charge.

{¶7} This Court affirmed Appellant’s convictions and sentence in State v. Paige,

7th Dist. Mahoning No. 17 MA 0033, 2019-Ohio-1088. Appellant filed an appeal with the

Supreme Court of Ohio which declined to accept jurisdiction. State v. Paige, 156 Ohio

St.3d 1464, 2019-Ohio-2892, 126 N.E.3d 1164. Appellant filed this delayed application

to reopen his appeal. The state did not file a response brief.

Reopening

{¶8} App.R. 26(B)(1) and (2)(b) require applications claiming ineffective

assistance of appellate counsel to be filed within ninety days from journalization of the

decision. App.R. 26(B)(1), (2)(b); State v. Gumm, 103 Ohio St.3d 162, 2004-Ohio-4755,

Case No. 17 MA 0033 –4–

814 N.E.2d 861. The ninety-day requirement applies to all appellants. State v. Buggs,

7th Dist. Mahoning No. 06 MA 28, 07 MA 187, 2009-Ohio-6628, ¶ 5.

{¶9} If an application for reopening is not filed within the ninety day time period,

an appellant must make a showing of good cause justifying the delay in filing. State v.

Dew, 7th Dist. Mahoning No. 08 MA 62, 2012-Ohio-434. Appellant’s application was filed

on September 19, 2019, almost six months after this Court’s decision. Therefore, it is

untimely on its face.

{¶10} Appellant asserts good cause for the delay by arguing that his appellate

counsel could not raise his own ineffectiveness. The delay was caused by the need to

have a second appellate counsel appointed. An application for reopening is a “collateral

postconviction remedy,” and the state “has no constitutional obligation * * * to provide

counsel to those defendants who file applications under that rule.” Morgan v. Eads, 104

Ohio St.3d 142, 2004-Ohio-6110, 818 N.E.2d 1157, ¶22, 25. On April 30, 2019,

approximately one month after this Court affirmed the judgment of the trial court,

Appellant’s motion to appoint counsel was granted. Pursuant to Appellant’s motion and

the judgment entry of this Court, counsel was appointed to assist Appellant with his appeal

to the Ohio Supreme Court, which ultimately denied jurisdiction. While it is true that

Appellant’s original counsel could not be expected to argue his or her own ineffectiveness,

there is no right to counsel on an application to reopen a direct appeal. State v. Adams,

7th Dist. Mahoning No. 08 MA 246, 2012-Ohio-2719, ¶ 84; State v. Keith, 119 Ohio St.3d

161, 2008-Ohio-3866, 892 N.E.2d 912, ¶ 7. Appellant’s affidavit provides no justification

as to Appellant’s failure to file the application himself within the deadline, instead of filing

six months after this Court affirmed the trial court.

Case No. 17 MA 0033 –5–

{¶11} As Appellant has failed to establish good cause or a valid basis for the

untimely filing of his App.R. 26(B) application for reopening, his application for reopening

is denied.

Conclusion

{¶12} An application for reopening filed pursuant to App.R. 26(B)(1) and (2)(b)

that is not filed within the ninety-day time limit requires that the application include a

showing of good cause for the untimely filing. Appellant’s application was filed six months

after this Court’s decision and Appellant has not established good cause for the untimely

filing and has not met the standard for delayed reopening. Accordingly, Appellant’s

application for delayed reopening of his direct appeal is hereby denied.

JUDGE CHERYL L. WAITE

JUDGE GENE DONOFRIO

JUDGE CAROL ANN ROBB

NOTICE TO COUNSEL

This document constitutes a final judgment entry.

Case No. 17 MA 0033