State v. Wilson

2024 Ohio 461

• Court: Ohio Court of Appeals
• Decided: February 8, 2024
• Docket: 111912
• Status: Published

Opinion

[Cite as State v. Wilson, 2024-Ohio-461.] COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 111912 v. :

ELLIS JAMES WILSON, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: APPLICATION DENIED RELEASED AND JOURNALIZED: February 2, 2024

Cuyahoga County Court of Common Pleas Case No. CR-20-655433-A Application for Reopening Motion No. 570371

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Kristen Hatcher, Assistant Prosecuting Attorney, for appellee.

Ellis James Wilson, pro se.

FRANK DANIEL CELEBREZZE, III, J.:

Applicant, Ellis Wilson (“Wilson”), has filed an application for

reopening pursuant to App.R 26(B). Wilson is attempting to reopen the appellate judgment rendered in State v. Wilson, 8th Dist. Cuyahoga No. 111912, 2023-Ohio-

1890, that affirmed the consecutive sentences on his convictions for murder and

having a weapon while under disability in State v. Wilson, Cuyahoga C.P. No. CR-

20-655433-A. We decline to reopen Wilson’s appeal.

App.R. 26(B)(2)(b) requires that Wilson establish “a showing of good

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

journalization of the appellate judgment” that 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 established that

[w]e 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. 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, 653 N.E.2d 252 (1995); State v.

Reddick, 72 Ohio St.3d 88, 647 N.E.2d 784 (1995). Herein, Wilson is attempting to reopen the appellate judgment

journalized on June 8, 2023. The application for reopening was not filed until

December 12, 2023, more than 90 days after journalization of the appellate

judgment in Wilson, supra. Wilson has failed to specifically argue or demonstrate

any viable showing of good cause for the untimely filing of his application for

reopening.

In addition, the apparent arguments raised by Wilson in the affidavits

attached to his application do not establish a valid basis for the untimely filing of his

App.R. 26(B) application for reopening. In State v. Lamar, 8th Dist. Cuyahoga No.

49551, 1985 Ohio App. LEXIS 7284 (Oct. 3, 1985), reopening disallowed (Nov. 15,

1995), Motion No. 63398, this court held that lack of communication with appellate

counsel did not show good cause. See also State v. Jarrells, 8th Dist. Cuyahoga No.

99329, 2014-Ohio-4564. Similarly, in State v. White, 8th Dist. Cuyahoga No. 57944,

1991 Ohio App. LEXIS 357 (Jan. 31, 1991), reopening disallowed (Oct. 19, 1994),

Motion No. 49174 and State v. Allen, 8th Dist. Cuyahoga No. 65806, 1994 Ohio App.

LEXIS 4956 (Nov. 3, 1994), reopening disallowed (July 8, 1996), Motion No. 67054,

this court rejected reliance on counsel as showing good cause. Specifically, in State

v. Fortson, 8th Dist. Cuyahoga No. 72229, 1998 Ohio App. LEXIS 6104 (Dec. 17,

1998), reopening disallowed (Jan. 23, 2001), Motion No. 18195, 2001 Ohio App.

LEXIS 245, this court ruled that an attorney’s delay in notification of an appellate

decision does not establish good cause. See also State v. Congress, 8th Dist.

Cuyahoga No. 102867, 2018-Ohio-4521; State v. Moss, 8th Dist. Cuyahoga Nos. 62318 and 62322, 1993 Ohio App. LEXIS 2491 (May 13, 1993), reopening

disallowed (Jan. 16, 1997), Motion No. 75838; State v. McClain, 8th Dist. Cuyahoga

No. 67785, 1995 Ohio App. LEXIS 3207 (Aug. 3, 1995), reopening disallowed (Apr.

15, 1997), Motion No. 76811; and State v. Russell, 8th Dist. Cuyahoga No. 69311,

1996 Ohio App. LEXIS 1879 (May 9, 1996), reopening disallowed (June 16, 1997),

Motion No. 82351, 1997 Ohio App. LEXIS 2663.

Also, this court has consistently held that lack of knowledge or

ignorance of the law does not provide sufficient cause for the untimely filing of an

application for reopening. State v. Klein, 8th Dist. Cuyahoga No. 58389, 1991 Ohio

App. LEXIS 1346 (Apr. 8, 1991), reopening disallowed (Mar. 15, 1994), Motion No.

49260, affirmed, 69 Ohio St.3d 1481, 634 N.E.2d 1027 (1994); State v. Trammell,

8th Dist. Cuyahoga No. 67834, 1995 Ohio App. LEXIS 2962 (July 24, 1995),

reopening disallowed (Apr. 22, 1996), Motion No. 70493; State v. Cummings, 8th

Dist. Cuyahoga No. 69966, 1996 Ohio App. LEXIS 4565 (Oct. 17, 1996), reopening

disallowed (Mar. 26, 1998), Motion No. 92134; and State v. Young, 8th Dist.

Cuyahoga Nos. 66768 and 66769, 1994 Ohio App. LEXIS 4634 (Oct. 13, 1994),

reopening disallowed (Dec. 5, 1995), Motion No. 66164.

Accordingly, we find that Wilson has failed to establish good cause for

the untimely filing of his application for reopening. Application denied.

_______ FRANK DANIEL CELEBREZZE, III, PRESIDING JUDGE

EILEEN A. GALLAGHER, J., and LISA B. FORBES, J., CONCUR