Court of Appeals of Ohio, Eighth District, Cuyahoga
Cuyahoga County Court of Common Pleas Case No. CR-14-586089-A
Application for Reopening Motion No. 528611.
Michael C. O'Malley, Cuyahoga County Prosecuting
Attorney, and Anthony Thomas Miranda, Assistant Prosecuting
Attorney, for appellee.
Brendan M. Weems, pro se.
JOURNAL ENTRY AND OPINION
RAYMOND C. HEADEN, JUDGE.
1} Applicant, Brendan M. Weems, seeks to reopen his
direct appeal, State v. Weems, 8th Dist. Cuyahoga
No. 102954, 2016-Ohio-701. He claims that appellate counsel
was ineffective because he was also trial counsel and failed
to raise his own ineffectiveness, and counsel failed to
sufficiently object to a ruling of the trial court. The
application is denied because it is untimely without a
showing of good cause.
and Substantive History
2} Weems was tried and convicted of rape and
kidnapping, for which he was sentenced to serve a prison term
15 years to life. He appealed, arguing there was insufficient
evidence to support his conviction for kidnapping and his
convictions were against the manifest weight of the evidence.
This court overruled these assigned errors and affirmed his
convictions. More than three years later, Weems filed an
application for reopening. There, he claims appellate counsel
was ineffective because appellate counsel also acted as trial
counsel and failed to raise an assignment of error about his
own ineffectiveness, and trial counsel failed to offer
additional objection to an evidentiary ruling made by the
3} App.R. 26(B) provides a limited means of
asserting a claim that appellate counsel was ineffective
under the same standard for ineffective assistance of trial
counsel set forth in Strickland v. Washington, 466
U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Where an
applicant is able to demonstrate a colorable claim of
ineffective assistance of appellate counsel, this court shall
reopen the appeal. App.R. 26(B)(5). However, the rule
provides for a strict deadline of 90 days. App.R. 26(B)(1);
State v. LaMar, 102 Ohio St.3d 467, 2004-Ohio-3976,
812 N.E.2d 970. Applications filed outside of that time must
demonstrate good cause for the untimely submission. App.R.
26(B)(1) and 26(B)(2)(b). Failure to demonstrate good cause
is fatal to an untimely application. See LaMar.
4} The appellate decision in this case was issued on
February 25, 2016. The application was filed on May 21, 2019.
The more than three-year span between these two dates means
that the application is untimely. Therefore, Weems must
establish good cause for the untimely filing. App.R. 26(B)(1)
5} In an effort to show good cause, Weems argues
that extensive public records requests and information he
obtained therefrom prompted the application for reopening.
However, arguments in an application to reopen are limited to
the record on appeal. See App.R. 9 and 12(A)(1)(b).
As this court has previously held, an applicant may not
attempt to add items to the record and then rely on those
items in the application.
It is well settled that "appellate review is strictly
limited to the record." State v. Ellis, 8th
Dist. Cuyahoga No. 90844, 2009-Ohio-4359, ¶ 6, citing
The Warder, Bushnell & Glessner Co. v. Jacobs,
58 Ohio St. 77,50 N.E. 97 (1898) (other citations
omitted); State v. Corbin, 8th Dist. Cuyahoga No.
82266, 2005-Ohio-4119, ¶ 7. A reviewing court cannot add
material to the appellate record and then decide the appeal
on the basis of the new material. Id., citing
State v. Ishmail,54 Ohio St.2d 402, 377 N.E.2d 500;
State v. Dixon,101 Ohio St.3d 328, 2004-Ohio-1585,
805 N.E.2d 1042, ¶ 62; State v. Thomas, 97 Ohio
St.3d 309, 2002-Ohio-6624, 779 N.E.2d 1017, ¶ 50.
"Nor can the effectiveness of appellate counsel be
judged by adding new matter to the record and ...