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State v. Harris

Court of Appeals of Ohio, Eighth District, Cuyahoga

February 27, 2018

STATE OF OHIO PLAINTIFF-APPELLEE
v.
DEAARON HARRIS DEFENDANT-APPELLANT

         Cuyahoga County Court of Common Pleas Case Nos. CR-12-563308-A, CR-12-568907-A, CR-13-571411-A, and CR-13-571412-A Application for Reopening Motion No. 512427

          FOR APPELLANT Deaaron Harris, pro se

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor By: Maxwell Martin Assistant County Prosecutor Justice Center

          JOURNAL ENTRY AND OPINION

          FRANK D CELEBREZZE, JR, PRESIDING JUDGE

         {¶1} Applicant, Deaaron Harris, seeks to reopen his appeal, claiming that appellate counsel was ineffective for failing to argue that the trial court's findings regarding consecutive sentences were incorrect. After a thorough review of the record and law, this court declines to reopen his appeal.

         I. Factual and Procedural History

         {¶2} On November 27, 2017, Harris, pursuant to App.R. 26(B) and State v. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204 (1992), applied to reopen this court's March 13, 2014 judgment in State v. Harris, 8th Dist. Cuyahoga No. 99919, 2014-Ohio-925. There, Harris's convictions and sentences for burglary in four cases were affirmed, but one case, Cuyahoga C.P. No. CR-12-568907-A, was remanded to the trial court for correction of the journal entry of sentence nunc pro tunc to reflect the proper period of postrelease control that was imposed during the sentencing hearing.[1]

         II. Law and Analysis

         A. Timeliness

         {¶3} App.R. 26(B)(1) and (B)(2)(b) require applications claiming ineffective assistance of appellate counsel to be filed within 90 days from journalization of the appellate decision unless the applicant shows good cause for filing at a later time. The 90-day deadline for filing an application for reopening must be strictly enforced. State v. LaMar, 102 Ohio St.3d 467, 2004-Ohio-3976, 812 N.E.2d 970; State v. Gumm, 103 Ohio St.3d 162, 2004-Ohio-4755, 814 N.E.2d 861. Harris filed his application on November 27, 2017 - almost four years after this court issued its decision in the underlying case. Thus, it is untimely on its face.

         {¶4} In an effort to establish good cause, Harris argues that he was not served with a copy of this court's decision or the nunc pro tunc entry in Cuyahoga C.P. No. CR-12-568907-A correcting the journal entry of sentence. He further asserts that at some point, he requested and received copies of each. He does not indicate when he received those, or elaborate on the reasons for his delay.

         {¶5} An applicant's alleged delayed notice of the appellate decision does not constitute good cause for an untimely application. State v. Alt, 8th Dist. Cuyahoga No. 96289, 2012-Ohio-2054, ¶ 8 citing State v. Mitchell, 8th Dist. Cuyahoga No. 88977, 2009-Ohio-1874 ("The failure of appellate counsel to notify a defendant-appellant of the judgment of the court of appeals is not good cause for the untimely filing of an application for reopening."); see also State v. Henderson, 8th Dist. Cuyahoga No. 95655, 2013-Ohio-2524, ¶ 2.

         {¶6} An untimely application must set forth good cause for tardiness. Harris has failed to show good cause. Because the lack of good cause precludes our consideration of the untimely application, the substantive merits of the application cannot be addressed. State ex rel. Wood v. McClelland, 140 Ohio St.3d 331, 2014-Ohio-3969, 18 N.E.3d 423, ¶ 13.

         {¶7} ...


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