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State v. Timmons

Court of Appeals of Ohio, Eighth District, Cuyahoga

August 27, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
TERRANCE TIMMONS, JR., Defendant-Appellant.

          Cuyahoga County Court of Common Pleas Case Nos. CR-16-611131-A, CR-16-611383-A, and CR-16-611004-A Application for Reopening Motion No. 528763

         JUDGMENT: APPLICATION DENIED

          Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Gregory J. Ochocki, Assistant Prosecuting Attorney, for appellee.

          Terrance Timmons, Jr., for appellant

          JOURNAL ENTRY AND OPINION

          SEAN C. GALLAGHER, JUDGE

         {¶ 1} Terrance Timmons, Jr., has filed a second App.R. 26(B) application for reopening of the appellate judgment that was rendered by this court in State v. Timmons, 8th Dist. Cuyahoga Nos. 105940, 105941, and 105942, 2018-Ohio-2837. For the following reasons, we decline to reopen Timmons's direct appeal.

         I. FACTS

         {¶ 2} On July 19, 2018, this court rendered an opinion that affirmed Timmons's convictions and sentences imposed in three underlying criminal cases, State v. Timmons, Cuyahoga C.P. Nos. CR-16-611004-A, CR-16-611131-A, and CR-16-611383-A. This court's judgment found that Timmons's two assignments of error, which involved the claims of defective pleas of guilty pursuant to Crim.R. 11 and the imposition of maximum, consecutive sentences, were not well taken.

         {¶ 3} On October 18, 2018, Timmons filed an App.R. 26(B) application for reopening. On November 7, 2018, Timmons filed a motion to withdraw the App.R. 26(B) application for reopening. On November 19, 2018, Timmons's motion to withdraw his App.R. 26(B) was granted and the application was denied as moot. On February 1, 2019, Timmons filed a motion to vacate the motion to withdraw, captioned "motion to vacate fraudulent motion," on the basis that it was filed by an "unknown" individual and did not represent his desire to withdraw the application.

         {¶ 4}On April 9, 2019, the "motion to vacate fraudulent motion" was denied and it was further held that a substantive review of the proposed assignments of error in support of his claim of ineffective assistance of appellate counsel failed to establish any claim of ineffective assistance of appellate counsel. On May 28, 2019, Timmons filed a second App.R. 26(B) application for reopening.

         II. UNTIMELY FILING OF APP.R. 26(B) APPLICATIONS FOR REOPENING

         {¶ 5} Timmons's first App.R. 26(B) application for reopening was filed on October 18, 2018, and the second application for reopening was filed on May 28, 2019. Both applications for reopening were filed beyond the 90- day period for the filing of a timely application for reopening.

         {¶ 6} App.R. 26(B)(2)(b) requires that Timmons establish "a showing of good cause for untimely filing if the application is filed more than 90 days after journalization of the appellate judgment" that is subject to reopening. The Supreme Court of Ohio, with regard to the 90-day deadline provided by App.R. 26(B)(2)(b), has established that:

[W]e now reject [the applicant's] claims that those excuses gave good cause to miss the 90-day deadline in App.R. 26(B). * * * 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. Ohio and other states "may erect reasonable procedural requirements for triggering the right to an adjudication," Logan v. Zimmerman Brush Co.,455 U.S. 422, 437, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982), and that is what Ohio has done by creating a 90-day deadline for the filing of applications to reopen. * * * The 90-day requirement in the rule is applicable to all appellants, State v. Winstead,74 Ohio St.3d 277, 278, 658 N.E.2d 722 (1996), and [the applicant] offers no sound reason why he, unlike so many other Ohio criminal ...

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