Court of Appeals of Ohio, Eighth District, Cuyahoga
Cuyahoga County Court of Common Pleas Case No. CR-15-594187-B
Application for Reopening Motion No. 517426
APPELLANT Marvin F. Johnson, Sr., pro se
ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga
County Prosecutor By: Frank Romeo Zeleznikar Assistant County
JOURNAL ENTRY AND OPINION
LASTER MAYS, JUDGE.
On May 9, 2018, Marvin F. Johnson Sr. ("Johnson")
filed an "Application for Reopening Appeal App. R.
26(B)" in State v. Johnson, 8th Dist. Cuyahoga
No. 105560, 2018-Ohio-178. In this application and supporting
affidavit, Johnson claims that his appellate counsel was
ineffective for not arguing the following: (1) that
Johnson's plea of no contest was not entered knowingly,
intelligently, and voluntarily, and (2) that Johnson's
sentence was based upon vindictiveness. On May 15, 2018, the
state filed the "State's Response to Appellant's
Application to Reopen Appeal." In that response, the
state contends that Johnson's application is untimely
under App.R. 26(B) and that Johnson has not shown good cause
for a delay in filing. On May 21, 2018, Johnson filed a reply
arguing that the original application was timely as from the
date of the denial of Johnson's motion for en
banc reconsideration of 8th Dist. Cuyahoga No. 105560.
For the following reasons, this court denies the application
to reopen as untimely.
Johnson's application is untimely, and there is no
showing of good cause for the delay. App.R. 26(B)(1) and
(2)(b) require applications claiming ineffective assistance
of appellate counsel to be filed within 90 days from the
journalization of the decision unless the applicant shows
good cause for filing at a later time. Untimeliness alone is
sufficient to dismiss the application. State v.
Wynn, 8th Dist. Cuyahoga No. 93057, 2010-Ohio-5469. This
court decided Johnson's case and journalized the decision
on January 18, 2018. Thus, Johnson's May 9, 2018
application is untimely on its face.
Johnson does not claim that there is just cause for a delay.
Johnson's claim is simply that an intervening motion
tolls the time for filing an application to reopen. But
motions do not toll the time in which to file. In State
v. Allen, 8th Dist. Cuyahoga No. 92482, 2010-Ohio-9,
reopening disallowed, 2011-Ohio-588, Allen
endeavored to toll the time for filing by submitting a
"Notice of intent to file App.R. 26(B)." This court
rejected Allen's attempt because the rules do not allow
such a "notice" and the Supreme Court of Ohio has
insisted on strictly enforcing the 90-day deadline. Further,
when this court disallowed reopening the application in
State v. Jarrett, 8th Dist. Cuyahoga No. 98759,
2014-Ohio-488, the court again found that moving to toll the
time in which to apply does not change the timeline for
App.R. 26. Even appeals to higher courts do not toll the time
to file under App.R. 26. State v. Keith, 119 Ohio
St.3d 161, 2008-Ohio-3866, 892 N.E.2d 912.
The Supreme Court of Ohio considered the legitimacy of the
rule's strict deadline 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. The Supreme Court of Ohio noted that states "may
erect reasonable requirements for triggering the right to an
adjudication." Ohio did that "by creating a 90-day
deadline for the filing of applications to reopen."
LaMar at ¶ 7, citing Logan v. Zimmerman
Brush Co., 455 U.S 422, 437, 102 S.Ct. 1148, 71 L.Ed.2d
265 (1982). Further, the Gumm court held that
"[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." Gumm at ¶ 7. The
rule's deadline cannot be ignored, and Johnson
"offers no sound reason why he - unlike so many other
Ohio criminal defendants - could not comply with that
fundamental aspect of the rule." LaMar at
Accordingly, this court denies Johnson's ...