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State v. Wilcox

Court of Appeals of Ohio, Eighth District

July 1, 2013

STATE OF OHIO PLAINTIFF-APPELLEE
v.
ISSAC WILCOX DEFENDANT-APPELLANT

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

FOR APPELLANT Issac Wilcox, pro se

ATTORNEYS FOR APPELLEE Timothy J. McGinty Cuyahoga County Prosecutor By: Kristen L. Sobieski Assistant County Prosecutor

SEAN C. GALLAGHER, J.

{¶l} 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.

MELODY J STEWART, AJ, and MARY J BOYLE, J, ...


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