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State v. Gonzalez

Court of Appeals of Ohio, Eighth District

July 30, 2013

STATE OF OHIO PLAINTIFF-APPELLEE
v.
EDGAR GONZALEZ DEFENDANT-APPELLANT

Cuyahoga County Court of Common Pleas Case No. CR-504595 Application for Reopening Motion No. 465891

Attorneys for Appellant Brian R. McGraw, Harvey B. Bruner Harvey B. Bruner Co., L.PA., Edgar Gonzalez.

Attorneys for Appellee Timothy McGinty Cuyahoga County Prosecutor, By: Kevin R. Filiatraut James M. Price Brian R. Radigan Assistant County Prosecutors

JOURNAL ENTRY AND OPINION

PATRICIA ANN BLACKMON, J.

{¶ 1} Edgar Gonzalez has filed an application for reopening pursuant to App.R. 26(B). Gonzalez is attempting to reopen the appellate judgment, as rendered in State v. Gonzalez, 8th Dist. No. 96102, 2011-Ohio-5253, which affirmed his conviction for the offenses of aggravated robbery and felonious assault. We decline to reopen Gonzalez's appeal.

{¶ 2} App.R. 26(B)(2)(b) requires that Gonzalez establish "a showing of good cause for untimely filing if the application is filed more than 90 days after journalization of the appellate judgment, " which is subject to reopening. The Supreme Court of Ohio, with regard to the 90-day deadline as provided by App.R. 26(B)(2)(b), has recently 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, at ΒΆ 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, 1995-Ohio-328, 653 N.E.2d 252; State v. Reddick, 72 Ohio St.3d 88, 1995-Ohio-248, 647 N.E.2d 784.

{¶3} 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.

{¶ 4} Herein, Gonzalez is attempting to reopen the appellate judgment that was journalized on October 13, 2011. The application for reopening was not filed until June 18, 2013, more than 90 days after journalization of the appellate judgement in State v. Gonzalez, supra. Gonzalez has failed to establish "a showing of good cause" for the untimely filing of his application for reopening. State v. Klein, 8th Dist. No. 58389, Ohio App. LEXIS 1346 (Apr. 8, 1991), reopening disallowed (Mar. 15, 1994), Motion No. 49260, aff'd, 69 Ohio St.3d 1481, 634 N.E.2d 1027 (1994); State v. Trammell, 8th Dist. No. 67834, 1995 Ohio App. LEXIS 2962 (July 24, 1995), reopening disallowed (Apr. 22, 1996), Motion No. 70493; State v. Travis, 8th Dist. No. 56825, 1990 Ohio App. LEXIS 1356 (Apr. 5, 1990), reopening disallowed (Nov. 2, 1994), Motion No. 51073, aff'd, 72 Ohio St.3d 317, 1995-Ohio-152, 649 N.E.2d 1226. See also State v. Gaston, 8th Dist. No. 79626, 2007 Ohio-155; State v. Torres, 8th Dist. No. 86530, 2007-Ohio-9.

{¶ 5} Accordingly, the application for reopening is denied.

EILEEN A GALLAGHER, P J, and TIM McCORMACK, J, ...


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