State v. Rhodes

2012 Ohio 471

• Court: Ohio Court of Appeals
• Decided: February 6, 2012
• Docket: 95683 96337
• Status: Published

Opinion

[Cite as State v. Rhodes, 2012-Ohio-471.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION Nos. 95683 and 96337

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

VINCENT RHODES DEFENDANT-APPELLANT

JUDGMENT: APPLICATION DENIED

Cuyahoga County Common Pleas Court Case No. CR-509952 Application for Reopening Motion No. 451048

RELEASE DATE: February 6, 2012 FOR APPELLANT

Vincent Rhodes Inmate No. 563-626 Trumbull Correctional Inst. P. O. Box 901 Leavittsburg, OH 44430

ATTORNEYS FOR APPELLEE

William D. Mason Cuyahoga County Prosecutor

By: Kristin Karkutt Diane Smilanick Assistant Prosecuting Attorneys The Justice Center, 9th Floor 1200 Ontario Street Cleveland, OH 44113 COLLEEN CONWAY COONEY, J.:

{¶ 1} Vincent Rhodes has filed an application for reopening pursuant to App.R.

26(B). He seeks to reopen the appellate judgment in State v. Rhodes, 8th District Nos. 95683

and 96337, 2011-Ohio-5153, 2011 WL 4599898, which affirmed his resentencing to a

seven-year term of incarceration and a $250 fine plus costs. We decline to reopen his

appeals.

{¶ 2} App.R. 26(B)(2)(b) requires that Rhodes establish “a showing of

good cause for untimely filing if the application is filed more than 90 days

after journalization of the appellate judgment,” which is subject to reopening.

The Supreme Court of Ohio, with regard to the 90-day deadline provided by

App.R. 26(B)(2)(b), has firmly established that:

We now reject [the applicant’s] claim that those excuses gave him good cause to miss the 90-day deadline in App.R. 26(B). The rule was amended to include the 90-day deadline more than seven months before [the applicant’s] appeal of right was decided by the court of appeals in February 1994, so the rule was firmly established then, just as it is today. Consistent enforcement of the rule’s deadline by the appellate courts in Ohio protects on the one hand the state’s legitimate interest in the finality of its judgments and ensures on the other hand that any claims of ineffective assistance of appellate counsel are promptly examined and resolved. Ohio and other states “may erect reasonable procedural requirements for triggering the right to an adjudication,” Logan v. Zimmerman Brush Co. (1982), 455 U.S. 422, 437, 102 S.Ct 1148, 71 L.Ed 2d 265, and that is what Ohio has done by creating a 90-day deadline for the filing of applications to reopen. [The applicant] could have retained new attorneys after the court of appeals issued its decision in 1994, or he could have filed the application on his own. What he could not do was ignore the rule’s filing deadline. * * * The 90-day requirement in the rule is “applicable to all appellants,” State v. Winstead (1996), 74 Ohio St.3d 277, 278, 658 N.E.2d 722, and [the applicant] offers no sound reason why he — unlike so many other Ohio criminal defendants — could not comply with that fundamental aspect of the rule. (Emphasis added.) State v. Gumm, 103 Ohio St.3d 162, 2004-Ohio-4755, 814 N.E.2d 861, at ¶7. See also State v. LaMar, 102 Ohio St.3d 467, 2004-Ohio-3976, 812 N.E.2d 970; State v. Cooey, 73 Ohio St.3d 411, 1995-Ohio-328, 653 N.E.2d 252; State v. Reddick, 72 Ohio St.3d 88, 1995-Ohio-249, 647 N.E.2d 784. {¶ 3} Rhodes is attempting to reopen the appellate judgment

journalized on October 6, 2011. The application for reopening was not filed

until Friday, January 6, 2012, more than 90 days after journalization of the

appellate judgment in Rhodes. Rhodes has failed to raise or argue “good

cause” for the untimely filing of his application for reopening. State v. Klein,

8th Dist. No. 58389, 1991 WL 41746 (Apr. 8, 1991), reopening disallowed

(Mar. 15, 1994), Motion No. 49260, aff’d, 69 Ohio St.3d 1481, 634 N.E.2d

1027; State v. Trammell, 8th Dist. No. 67834, 1995 WL 415171 (July 24,

1995), reopening disallowed (Apr. 22, 1996), Motion No. 70493; State v. Travis

8th Dist. No. 56825, 1990 WL 40573 (Apr. 5, 1990), reopening disallowed

(Nov. 2, 1994), Motion No. 51073, aff’d, 72 Ohio St.3d 317, 649 N.E.2d 1226

(1995). See also State v. Gaston, 8th Dist. No. 79626, 2007 WL 117505 (Jan.

1, 2007) reopening disallowed (Jan. 17, 2007), Motion No. 391555; State v.

Torres, 8th Dist. No. 86530, 2006-Ohio-3696, 2006 WL 2023578, reopening

disallowed 2007-Ohio-9, Motion No. 390254.

{¶ 4} Accordingly, the application for reopening is denied.

COLLEEN CONWAY COONEY, JUDGE

PATRICIA ANN BLACKMON, A.J., and MARY J. BOYLE, J., CONCUR