State v. Moore , 2011 Ohio 2143 ( 2011 )

[Cite as State v. Moore, 2011-Ohio-2143.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 92654
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
TERRANCE MOORE
DEFENDANT-APPELLANT
JUDGMENT:
APPLICATION DENIED
Cuyahoga County Common Pleas Court
Case Nos. CR-427648 and CR-445445
Application for Reopening
Motion No. 443348
RELEASE DATE: May 3, 2011
-i-
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FOR APPELLANT
Terrance Moore, Pro Se
Inmate No. 480-096
Marion Correctional Institution
P.O. Box 57
Marion, Ohio 43301
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
By: Allan T. Regas
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
KENNETH A. ROCCO, J.:
{¶ 1} Terrance Moore has filed an application for reopening pursuant to App.R.
26(B). Moore is attempting to reopen the appellate judgment, as rendered in State v. Moore,
Cuyahoga App. No. 92654, 2010-Ohio-770, which affirmed his conviction and sentence in
part, reversed the sentence in part, and remanded for resentencing. We decline to reopen
Moore’s appeal.
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{¶ 2} App.R. 26(B)(2)(b) requires that Moore establish “a showing of good cause for
untimely filing if the application is filed more than 90 days after journalization of the appellate
judgment,” which is subject to reopening. The Supreme Court of Ohio, with regard to the
90-day deadline as provided by App.R. 26(B)(2)(b), has firmly established that:
{¶ 3} “We now reject [applicant’s] claim that those excuses gave him good cause to
miss the 90-day deadline in App.R. 26(B). The rule was amended to include the 90-day
deadline more than seven months before [applicant’s] appeal of right was decided by the court
of appeals in February 1994, so the rule was firmly established then, just as it is today.
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.
{¶ 4} “Ohio and other states ‘may erect reasonable procedural requirements for
triggering the right to an adjudication,’ Logan v. Zimmerman Brush Co. (1982), 455 U.S. 422,
437, 102 S.Ct. 1148, 71 L.Ed.2d 265, and that is what Ohio has done by creating a 90-day
deadline for the filing of applications to reopen. [Applicant] could have retained new attorneys
after the court of appeals issued its decision in 1994, or he could have filed the application on
his own. What he could not do was ignore the rule’s filing deadline. * * * The 90-day
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requirement in the rule is ‘applicable to all appellants,’ State v. Winstead (1996), 74 Ohio
St.3d 277, 278, 658 N.E.2d 722, and Gumm offers no sound reason why he – unlike so many
other Ohio criminal defendants – could not comply with that fundamental aspect of the rule.”
(Emphasis added.) State v. Gumm, 103 Ohio St.3d 162, 2004-Ohio-4755, 814 N.E.2d 861, at
¶7.
{¶ 5} See, also, State v. LaMar, 102 Ohio St.3d 467, 2004-Ohio-3976, 812 N.E.2d
970; State v. Cooey, 73 Ohio St.3d 411, 1995-Ohio-328, 653 N.E.2d 252; State v. Reddick, 72
Ohio St.3d 88, 1995-Ohio-249, 647 N.E.2d 784.
{¶ 6} Herein, Moore is attempting to reopen the appellate judgment that was
journalized on March 4, 2010. The application for reopening was not filed until April 1,
2011, more than 90 days after journalization of the appellate judgment in State v. Moore,
supra. Moore has failed to raise or establish “good cause” for the untimely filing of his
application for reopening. The failure to establish “good cause” mandates that this court
deny the application for reopening. State v. White (Jan. 31, 1991), Cuyahoga App. No.
57944, reopening disallowed (Oct. 19, 1994), Motion No. 249174; State v. Allen (Nov. 3,
1994), Cuyahoga App. No. 65806, reopening disallowed (July 8, 1996), Motion No. 267054.
See, also, State v. Moss (May 13, 1993), Cuyahoga App. Nos. 62318 and 62322, reopening
disallowed (Jan. 16, 1997), Motion No. 275838; State v. McClain (Aug. 3, 1995), Cuyahoga
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App. No. 67785, reopening disallowed (Apr. 15, 1997), Motion No. 276811; State v. Russell
(May 9, 1996), Cuyahoga App. No. 69311, reopening disallowed (June 16, 1997), Motion No.
282351.
{¶ 7} In addition, lack of knowledge or ignorance of the time constraint, applicable to
an application for reopening per App.R. 26(B), does not provide sufficient cause for untimely
filing. State v. Klein (Mar. 28, 1991), Cuyahoga App. No. 58389, reopening disallowed
(Mar. 15, 1994), Motion No. 249260, affirmed (1994), 69 Ohio St.3d 1481; State v. Trammell
(July 13, 1995), Cuyahoga App. No. 67834, reopening disallowed (Apr. 22, 1996), Motion
No. 270493; State v. Travis (Apr. 5, 1990), Cuyahoga App. No. 56825, reopening
disallowed (Nov. 2, 1994), Motion No. 251073, affirmed (1995), 72 Ohio St.3d 317. See,
also, State v. Torres, Cuyahoga App. No. 86530, 2007-Ohio-3696, reopening disallowed (Jan.
3, 2007), Motion No, 390254; State v. Gaston (Feb. 7. 2002), Cuyahoga App. No. 79626,
reopening disallowed (Jan 17,2007), Motion No. 391555.
{¶ 8} Accordingly, the application for reopening is denied.
__________________________________
KENNETH A. ROCCO, JUDGE
PATRICIA ANN BLACKMON, P.J., and
LARRY A. JONES, J., CONCUR
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