State v. Porter

2018 Ohio 2721

• Court: Ohio Court of Appeals
• Decided: July 6, 2018
• Docket: 103185
• Status: Published

Opinion

[Cite as State v. Porter , 2018-Ohio-2721.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 103185

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

ROBERT M. PORTER

DEFENDANT-APPELLANT

JUDGMENT: APPLICATION DENIED

Cuyahoga County Court of Common Pleas Case No. CR-14-585728-A Application for Reopening Motion No. 517304

RELEASE DATE: July 6, 2018 FOR APPELLANT

Robert M. Porter, pro se Inmate No. 664610 Toledo Correctional Institution 2100 East Central Avenue Toledo, Ohio 43608-0000

ATTORNEYS FOR APPELLEE

Michael C. O’Malley Cuyahoga County Prosecutor By: Gregory J. Ochocki Assistant County Prosecutor Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 ANITA LASTER MAYS, J.:

{¶1} Applicant, Robert M. Porter, seeks to reopen his appeal pursuant to App.R. 26(B).

He claims that appellate counsel was ineffective for failing to raise certain assignments of error

related to the withdrawal of guilty pleas entered in the underlying criminal case. This court

denies the application.

I. Background and Facts

{¶2} Porter was charged with crimes related to the aggravated robbery and murder of

Curtis Marks. On the day of trial, Porter pled guilty to involuntary manslaughter and

aggravated robbery. He was sentenced to a prison term of 20 years. He appealed his

conviction and sentence, which were affirmed in a decision released on September 15, 2016.

State v. Porter, 8th Dist. Cuyahoga No. 103185, 2016-Ohio-5832 (“Porter I”).

{¶3} Porter also filed a postconviction relief petition in 2017 claiming that trial counsel

was ineffective for not timely filing a motion to withdraw his plea. The trial court denied the

petition as untimely, and Porter, pro se, appealed that judgment to this court. This court

affirmed the denial. State v. Porter, 8th Dist. Cuyahoga No. 106032, 2018-Ohio-1200 (“Porter

II”).

{¶4} On May 4, 2018, Porter filed an application to reopen his 2016 appeal in Porter I,

asking this court to review the following proposed assignment of error:

“Because the appellant sought to withdraw the guilty plea within days of entering the plea (thus

there could be no prejudice to the state), and because he asserted his innocence as cause, the trial

court abused its discretion in failing to grant the motion to withdraw the plea.”

II. Law and Analysis A. Untimely Application for Reopening — Good Cause

{¶5} Pursuant to App.R. 26(B) and State v. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d

1204 (1992), Porter untimely filed an application to reopen his 2016 appeal — Porter I. App.R.

26(B)(1) and (B)(2)(b) impose a strict 90-day deadline for the filing of an application for

reopening. State v. LaMar, 102 Ohio St.3d 467, 2004-Ohio-3976, 812 N.E.2d 970; State v.

Gumm, 103 Ohio St.3d 162, 2004-Ohio-4755, 814 N.E.2d 861. An application submitted

beyond that deadline requires a showing of good cause for tardiness. App.R. 26(B)(2)(b); State

v. Koreisl, 8th Dist. Cuyahoga No. 90950, 2011-Ohio-6438.

{¶6} Porter claims that he has established good cause for the untimely filing. He claims

that he did not have access to a transcript of the proceedings, and therefore, did not know that the

transcript contained references to a pretrial motion to withdraw his pleas. This court has held

numerous times that lack of access to a transcript does not constitute good cause for an untimely

application to reopen. State v. Rudd, 8th Dist. Cuyahoga No. 102754, 2018-Ohio-1383,  3

(collecting cases). The failure to establish good cause means this court must deny the

application for reopening. Koreisl at  8.

{¶7} Application denied.

ANITA LASTER MAYS, JUDGE

MARY EILEEN KILBANE, P.J., and MARY J. BOYLE, J., CONCUR