State v. Wilcox

2013 Ohio 2895

• Court: Ohio Court of Appeals
• Decided: July 1, 2013
• Docket: 96079
• Status: Published

Opinion

[Cite as State v. Wilcox, 2013-Ohio-2895.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

___________________________________

JOURNAL ENTRY AND OPINION No. 96079 ___________________________________

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

ISSAC WILCOX DEFENDANT-APPELLANT

JUDGMENT: APPLICATION DENIED

Cuyahoga County Court of Common Pleas Case No. CR-540046 Application for Reopening Motion No. 464832

RELEASE DATE: July 1, 2013 FOR APPELLANT

Issac Wilcox, pro se Inmate No. 593-138 Mansfield Correctional Institution P.O. Box 788 Mansfield, OH 44901

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor By: Kristen L. Sobieski Assistant County Prosecutor 8th Floor Justice Center 1200 Ontario Street Cleveland, OH 44113 SEAN C. GALLAGHER, J.:

{¶1} On May 9, 2013, the applicant, Issac Wilcox, applied pursuant to App.R.

26(B) and State v. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204 (1992), to reopen this

court’s judgment in State v. Wilcox, 8th Dist. No. 96079, 2011-Ohio-5388, in which this

court affirmed Wilcox’s convictions for kidnapping with a three-year firearm

specification, domestic violence, having a weapon under disability, and four counts of

aggravating menacing. Wilcox argues that his appellate counsel was ineffective for

failing to raise various issues, including hearsay evidence and prosecutorial misconduct.

On June 10, 2013, the state of Ohio filed its brief in opposition. For the following

reasons, this court denies the application.

{¶2} App.R. 26(B)(1) and (2)(b) require applications claiming ineffective

assistance of appellate counsel to be filed within 90 days from journalization of the

decision unless the applicant shows good cause for filing at a later time. The May 2013

application was filed approximately 19 months after this court’s decision. Thus, it is

untimely on its face. In an effort to establish good cause, Wilcox argues that after the

appeal, his family retained an attorney to file, inter alia, the App.R. 26(B) application, but

the attorney never filed the application in the ensuing year. The client-counsel

relationship terminated no later than January 2013. Thus, Wilcox argues that his

misplaced reliance on the attorney provides good cause for the untimely filing.

{¶3} However, reliance on counsel does not state good cause. In State v. White,

8th Dist. No. 57944, 1991 Ohio App. LEXIS 357 (Jan. 31, 1991), reopening disallowed (Oct. 19, 1994), motion No. 249174; and State v. Allen, 8th Dist. No. 65806, 1994 Ohio

App. LEXIS 4956 (Nov. 3, 1994), reopening disallowed (July 8, 1996), motion No.

267054, this court rejected reliance on counsel as showing good cause. In State v. Rios,

75 Ohio App.3d 288, 599 N.E.2d 374 (8th Dist.1991), reopening disallowed (Sept. 18,

1995), motion No. 266129, Rios maintained that the untimely filing of his application for

reopening was primarily caused by the ineffective assistance of appellate counsel; again,

this court rejected that excuse.

{¶4} Moreover, the Supreme Court of Ohio in State v. LaMar, 102 Ohio St.3d 467,

2004-Ohio-3976, 812 N.E.2d 970, and State v. Gumm, 103 Ohio St.3d 162,

2004-Ohio-4755, 814 N.E.2d 861, held that the 90-day deadline for filing must be strictly

enforced. In those cases, the applicants argued that after the courts of appeals decided

their cases, their appellate lawyers continued to represent them, and their appellate

lawyers could not be expected to raise their own incompetence. Although the Supreme

Court agreed with this latter principle, it rejected the argument that continued

representation provided good cause. In both cases, the court ruled that the applicants

could not ignore the 90-day deadline, even if it meant retaining new counsel or filing the

applications themselves. The court then reaffirmed the principle that lack of effort, lack

of imagination, and ignorance of the law do not establish good cause for failure to seek

timely relief under App.R. 26(B). Thus, Wilcox’s misplaced reliance on his new

counsel does not state good cause.

{¶5} Accordingly, this court denies the application to reopen. SEAN C. GALLAGHER, JUDGE

MELODY J. STEWART, A.J., and MARY J. BOYLE, J., CONCUR