Court of Appeals of Ohio, Eighth District, Cuyahoga
County Court of Common Pleas Case No. CR-14-582577-A
Application for Reopening Motion No. 512997
APPELLANT Lugene L. Scott, pro se.
ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga
County Prosecutor By: Mahmoud S. Awadallah Assistant County
JOURNAL ENTRY AND OPINION
LASTER MAYS, JUDGE.
On December 15, 2017, the applicant, Lugene Scott, pursuant
to App.R. 26(B) and State v. Murnahan, 62 Ohio St.3d
60, 584 N.E.2d 1204 (1992), applied to reopen this
court's judgment in State v. Scott, 8th Dist.
Cuyahoga No. 103696, 2016-Ohio-5929, in which this court
affirmed Scott's conviction for voluntary manslaughter,
vacated his two-year sentence for having a weapon while under
disability, and remanded the case for proceedings consistent
with the opinion. Scott now maintains that his appellate
counsel was ineffective for not arguing that he should have
received five years jail-time credit toward his ten-year
sentence for voluntary manslaughter. Sua sponte, for the
following reasons, this court denies the application.
In 2007, Scott was charged with shooting Damien Taylor and
Donnie Davidson. Taylor was paralyzed as a result of the
shooting. In State v. Scott, Cuyahoga C.P. No.
CR-07-499259-A, the trial court found Scott guilty of
aggravated assault of Davidson, felonious assault of Taylor,
and having a weapon while under disability and sentenced him
to one year for aggravated assault, five years for felonious
assault, and three years for the weapons charge, all to be
When Taylor died in 2013, from complications from the 2007
gunshot, the coroner ruled the death a homicide. The state of
Ohio charged Scott with aggravated murder, felonious assault,
and having a weapon while under disability. Pursuant to a
plea agreement, Scott pleaded guilty to voluntary
manslaughter and heaving a weapon while under disability, and
the judge sentenced him to ten years for voluntary
manslaughter consecutive to two years for the weapons charge.
In a September 22, 2016 opinion, this court ruled the
sentence for the weapons charge violated double jeopardy and
had to be vacated. This court rejected the other arguments
that double jeopardy also barred the prosecution for
voluntary manslaughter and that the second case should have
been assigned to the judge that heard the original case.
Scott now claims that his appellate counsel should have
argued that he was entitled to five years credit for the time
sentenced on the felonious assault charge toward the time
imposed for the voluntary manslaughter.
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
December 2017 application was filed approximately one year
and three months after this court's decision. Thus, it is
untimely on its face. In an effort to establish good cause,
Scott argues that his appellate counsel did not inform him of
the 90-day deadline for filing pursuant to App.R. 26(B) and
did not send him the transcripts.
This court has repeatedly ruled that lack of a transcript
does not state good cause for an untimely filing. State
v. Lawson, 8th Dist. Cuyahoga No. 84402, 2005-Ohio-880,
reopening disallowed, 2006-Ohio-3839; State v.
Blackmon 8th Dist. Cuyahoga No. 48787, 1985 Ohio
App.LEXIS 6810 (July 18, 1985), reopening
disallowed, 2000 Ohio App. LEXIS 6080 (Oct. 25,
2000), Motion No. 318768; State v. Houston, 8th
Dist. Cuyahoga No. 64574, 1994 Ohio App. LEXIS 52 (Jan. 13,
1994), reopening disallowed (Feb. 15,
1995), Motion No. 259344, affd, 73 Ohio St.3d 346,
652 N.E.2d 1018 (1985).
In State v. Lamar, 8th Dist. Cuyahoga No. 49551,
1985 Ohio App. LEXIS 7284 (Oct. 15, 1985), reopening
disallowed (Nov. 15, 1995), Motion No. 263398, this
court held that lack of communication with appellate counsel
did not show good cause. 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. 249174, affd, 72 Ohio
St.3d 91, 647 N.E.2d 787 (1995), and State v. Allen,
8th Dist. Cuyahoga 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.
Moreover, the courts have consistently ruled that lack of
knowledge or ignorance of the law does not provide sufficient
cause for untimely filing. State v. Klein, 8th Dist.
Cuyahoga No. 58389, 1991 WL 41746 (Apr. 8, 1991),
reopening disallowed, Motion No. 249260 (Mar. 15,
1994), affd, 69 Ohio St.3d 1481 (1994); State v.
Trammell, 8th Dist. Cuyahoga No. 67834, 1995 WL 415171
(July 24, 1995), reopening disallowed, Motion No.
270493 (Apr. 22, 1996).
Scott's excuses do not state good cause.
Accordingly, this court denies ...