Court of Appeals of Ohio, Eighth District, Cuyahoga
County Court of Common Pleas Case No. CR-15-600586-A
Application for Reopening Motion No. 507240
APPELLANT Darnell E. Cosper, pro se Inmate
ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga
County Prosecutor By: Anthony Thomas Miranda Assistant County
JOURNAL ENTRY AND OPINION
C. GALLAGHER, J.
In State v. Cosper, Cuyahoga C.P. No.
CR-15-600586-A, applicant, Darnell Cosper, pled guilty to and
was convicted of aggravated robbery with a three-year firearm
specification, aggravated robbery with a one-year firearm
specification, attempted safecracking, grand theft, and
having weapons while under disability. On February 3, 2016,
the trial court sentenced Cosper to a total of eight years in
prison. Six months later, Cosper filed a delayed appeal pro
se, which this court ultimately dismissed for failure to file
a brief in State v. Cosper, 8th Dist. Cuyahoga No.
104832 (Oct. 25, 2016) (entry no. 501156). Cosper did not
appeal the dismissal, but filed an untimely motion for
reconsideration approximately one month later on the basis
that he had filed a motion for the appointment of appellate
counsel and was awaiting a ruling. On December 6, 2016, this
court denied Cosper's motion for reconsideration.
On May 18, 2017, Cosper filed an application under App.R.
26(B) for reopening of this court's judgment in State
v. Cosper, 8th Dist. Cuyahoga No. 104832. The state of
Ohio opposes the application on the following grounds: (1)
Cosper cannot avail himself of App.R. 26(B) because he
represented himself in the direct appeal; (2) the application
is untimely; and (3) it is procedurally defective. We agree
and deny the application.
App.R. 26(B)(1) provides, in part: "A defendant in a
criminal case may apply for reopening of the appeal from the
judgment of conviction and sentence, based on a claim of
ineffective assistance of appellate counsel." A
defendant who represents himself or herself on direct appeal,
however, may not maintain an application for reopening.
State v. Kennedy, 8th Dist. Cuyahoga No. 99378,
2014-Ohio-201, ¶ 4; State v. Effinger, 8th
Dist. Cuyahoga No. 93450, 2009-Ohio-5242, ¶ 4; and
State v. Gaston, 8th Dist. Cuyahoga No. 92242,
2009-Ohio-3080, reopening disallowed,
2009-Ohio-4715. Because Cosper represented himself on appeal,
he cannot satisfy the standard for reopening under App.R.
Further, App.R. 26(B)(2)(b) requires that an application for
reopening include "a showing of good cause for untimely
filing if the application is filed more than ninety days
after journalization of the appellate judgment." Here,
Cosper has filed an untimely application and fails to offer
any reason for the delay. His failure to establish "good
cause" for the untimely filing requires that this court
deny his application. State v. Melton, 8th Dist.
Cuyahoga No. 102396, 2016-Ohio-1219, reopening
disallowed, 2017-Ohio-2648, ¶ 3, citing State
v. Gumm, 103 Ohio St.3d 162, 2004-Ohio-4755, 814 N.E.2d
861, and State v. LaMar, 102 Ohio St.3d 467,
2004-Ohio-3976, 812 N.E.2d 970 (recognizing that the 90-day
deadline for filing must be strictly enforced).
Finally, Cosper's application is procedurally defective
because he failed to attach a sworn statement as required
under App.R. 26(B)(2)(d). The sworn statement is mandatory
and the failure to include one warrants denial of the
application. State v. Lechner, 72 Ohio St.3d 374,
650 N.E.2d 449 (1995); see also State v. Bates, 8th
Dist. Cuyahoga Nos. 97631, 97632, 97633, and 97634,
2012-Ohio-3949, reopening disallowed,
2015-Ohio-4176 (applying Lechner and recognizing
that the sworn statement is mandatory).
Accordingly, the application ...