State v. Welch

2012 Ohio 3351

• Court: Ohio Court of Appeals
• Decided: July 24, 2012
• Docket: 95577
• Status: Published

Opinion

[Cite as State v. Welch, 2012-Ohio-3351.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 95577

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

LEE WELCH DEFENDANT-APPELLANT

JUDGMENT: APPLICATION DENIED

Cuyahoga County Common Pleas Court Case No. CR-529812 Application for Reopening Motion No. 454708

RELEASE DATE: July 24, 2012 APPELLANT

Lee Welch, Pro Se No. 590-660 Mansfield Correctional Institution P.O. Box 788 Mansfield, Ohio 44901

ATTORNEYS FOR APPELLEE

William D. Mason, Esq. Cuyahoga County Prosecutor By: Mary McGrath, Esq. Assistant Prosecuting Attorney 1200 Ontario Street Cleveland, Ohio 44113 JAMES J. SWEENEY, P.J.:

{¶1} Lee Welch has filed an application for reopening pursuant to App.R. 26(B).

Welch seeks to reopen the appellate judgment rendered in State v. Welch, 8th Dist. No.

95577, 2011-Ohio-3243, which affirmed his conviction for multiple sexual offenses, but

remanded for resentencing. We decline to grant the application for reopening.

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

for untimely filing if the application is filed more than 90 days after journalization of the

appellate judgement,” 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] claims that those excuses gave good cause to miss the 90-day deadline in App. R. 26(B). * * * 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 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, ¶ 7-9. 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} Welch is attempting to reopen the appellate judgment journalized on June

30, 2011. The application for reopening was not filed until May 2, 2012, more than 90

days after journalization of the appellate judgment in Welch. Welch has failed to argue or

establish any “good cause” under App.R. 26(B)(2)(b) for failing to file his application

within the time limit set by the rule. Gumm, at ¶ 7. See also Lamar. Thus, his

application is untimely.

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

_______________________________________________ JAMES J. SWEENEY, PRESIDING JUDGE

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