State v. Rolling

2014 Ohio 4373

• Court: Ohio Court of Appeals
• Decided: September 30, 2014
• Docket: 83051
• Status: Published

Opinion

[Cite as State v. Rolling, 2014-Ohio-4373.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

___________________________________

JOURNAL ENTRY AND OPINION No. 83051 ___________________________________

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

MICHAEL ROLLING DEFENDANT-APPELLANT

JUDGMENT: APPLICATION DENIED

Cuyahoga County Court of Common Pleas Case No. CR-02-421317-ZA Application for Reopening Motion No. 476390

RELEASE DATE: September 30, 2014 FOR APPELLANT

Michael Rolling, pro se Inmate No. 443-440 Marion Correctional Institution P.O. Box 57 Marion, Ohio 43301

ATTORNEY FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor Justice Center - 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 SEAN C. GALLAGHER, P.J.:

{¶1} Applicant, Michael Rolling, has filed a second application to reopen the

instant appeal. In this matter, Rolling filed a motion for delayed appeal, which was

denied. Rolling previously filed an application for reopening, which was denied by

State v. Rolling, 8th Dist. Cuyahoga No. 83051, 2007-Ohio-2635, motion No. 394817

(“Rolling I”), because the application was untimely and because App.R. 26(B) is

inapplicable where no appellate judgment is announced or journalized. Alternatively,

Rolling moves this court for delayed reconsideration of either this court’s denial of his

motion for delayed appeal or the dismissal of his original appeal in State v. Rolling, 8th

Dist. Cuyahoga No. 82526. The state has not responded to Rolling’s application. For

the reasons that follow, we deny the application for reopening and the request for delayed

reconsideration.

{¶2} The reasons for denying the application set forth in Rolling I still apply. There

has been no appellate judgment announced or journalized because Rolling’s motion for

leave to file a delayed appeal was denied. Likewise, there was no appellate judgment

rendered in State v. Rolling, 8th Dist. Cuyahoga No. 82526, which was also dismissed for

failure to file the record. Further, the Ohio Supreme Court has established that “‘there is

no right to file successive applications for reopening’ under App.R. 26(B).” State v.

Twyford, 106 Ohio St.3d 176, 2005-Ohio-4380, 833 N.E.2d 289, ¶ 6, quoting State v.

Williams, 99 Ohio St.3d 179, 2003-Ohio-3079, 790 N.E.2d 299, ¶ 12. {¶3} Additionally, the application is untimely. Even if App.R. 26(B) could be

applied to an appeal that was dismissed without a decision, this application is well beyond

the 90-day time limit established by the rule. Rolling offers no good cause for failing to

bring a timely application.

{¶4} Finally, Rolling’s only proffered basis for seeking reopening is that counsel’s

alleged failure to perfect a timely appeal deprived him of his ability to challenge the

constitutionality of his guilty plea. This claim is barred by res judicata. This court has

addressed the validity of Rolling’s guilty plea in State v. Rolling, 8th Dist. Cuyahoga No.

95473, 2011-Ohio-121. Accordingly, even if we were to consider a delayed motion for

reconsideration of the dismissal of the appeal, it would be pointless to reopen it where the

only potential error that Rolling has identified is barred by res judicata.

{¶5} The application for reopening is denied.

SEAN C. GALLAGHER, PRESIDING JUDGE

KENNETH A. ROCCO, J., and TIM McCORMACK, J., CONCUR