State v. Reid

2013 Ohio 4027

Opinion

[Cite as State v. Reid, 2013-Ohio-4027.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 93222

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

COLIN E. REID DEFENDANT-APPELLANT

JUDGMENT: APPLICATION DENIED

Cuyahoga County Court of Common Pleas Case No. CR-518944 Application for Reopening Motion No. 465983

RELEASE DATE: September 13, 2013 ATTORNEY FOR APPELLANT

Michael J. Goldberg The Goldberg Law Firm 323 Lakeside Avenue Suite 450 Cleveland, OH 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor

By: Mary H. McGrath Assistant County Prosecutor 8th Floor Justice Center 1200 Ontario Street Cleveland, OH 44113 EILEEN A. GALLAGHER, J.:

{¶1} Applicant, Colin E. Reid, pled guilty and was sentenced on convictions of

attempted aggravated robbery, kidnapping, felonious assault, failure to comply, vandalism

and driving while under the influence in Cuyahoga C.P. No. CR-518944. Reid, through

counsel, pursued an appeal in State v. Reid, 8th Dist. Cuyahoga No. 93222. However,

the appeal was voluntarily dismissed on December 18, 2009. This court never issued or

journalized any decision on Reid’s appeal. On June 20, 2013, Reid filed a delayed

application to reopen the appeal pursuant to App.R. 26(B), which provides, in part, as

follows:

A defendant in a criminal case may apply for reopening of the appeal from the judgment of conviction and sentence, based on a claim of ineffective assistance of appellate counsel. An application for reopening shall be filed in the court of appeals where the appeal was decided within ninety days from journalization of the appellate judgment unless the applicant shows good cause for filing at a later time.

{¶2} Since this court did not issue or journalize an appellate judgment that

decided an appeal from Reid’s judgment of conviction and sentence, App.R. 26(B) does

not apply. We are prevented from considering the application to reopen. State v. Bennett,

8th Dist. Cuyahoga No. 90815, 2009-Ohio-343, ¶ 2, citing, State v. Skaggs, 8th Dist.

Cuyahoga No. 76301, 1999 Ohio App. LEXIS 4680 (May 12, 1999), reopening

disallowed (Sept. 21, 1999), Motion No. 7505 (other citations omitted). {¶3} Even if App.R. 26(B) did apply, we still could not consider Reid’s untimely

application because it does not set forth good cause for the delay. The application was

not filed until June 20, 2013 — three and one-half years after the voluntary dismissal of

Reid’s appeal. Reid maintains he received ineffective assistance of counsel at all stages

of the proceedings that should excuse him from the 90-day time limit set forth in App.R.

26(B). Reliance on counsel, or continued representation by counsel, does not establish

good cause for failure to comply with the 90-day time limit. State v. LaMar, 102 Ohio

St.3d 467, 2004-Ohio-3976, 812 N.E.2d 970, ¶ 7-9; State v. Gumm, 103 Ohio St.3d 162,

2004-Ohio-4755, 814 N.E.2d 861.

{¶4} Accordingly, this court denies the application to reopen.

EILEEN A. GALLAGHER, JUDGE

KATHLEEN ANN KEOUGH, P.J., and EILEEN T. GALLAGHER, J., CONCUR