State v. McSwain , 2018 Ohio 1827 ( 2018 )


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  • [Cite as State v. McSwain, 2018-Ohio-1827.]
    Court of Appeals of Ohio
    EIGHTH APPELLATE DISTRICT
    COUNTY OF CUYAHOGA
    JOURNAL ENTRY AND OPINION
    No. 105451
    STATE OF OHIO
    PLAINTIFF-APPELLEE
    vs.
    DORN McSWAIN
    DEFENDANT-APPELLANT
    JUDGMENT:
    APPLICATION DENIED
    Cuyahoga County Court of Common Pleas
    Case No. CR-16-609563-A
    Application for Reopening
    Motion No. 514908
    RELEASE DATE:              May 7, 2018
    FOR APPELLANT
    Dorn McSwain, pro se
    Inmate No. 692840
    Noble Correctional Institution
    15708 McConnelsville Road
    Caldwell, Ohio 43724
    ATTORNEYS FOR APPELLEE
    Michael C. O’Malley
    Cuyahoga County Prosecutor
    By: Katherine Mullin
    Assistant County Prosecutor
    8th Floor Justice Center
    1200 Ontario Street
    Cleveland, Ohio 44113
    PATRICIA ANN BLACKMON, J.:
    {¶1} Dorn McSwain has filed an application for reopening pursuant to App.R.
    26(B). McSwain is attempting to reopen the appellate judgment rendered in State v.
    McSwain, 8th Dist. Cuyahoga No. 105451, 2017-Ohio-8489, that affirmed his conviction
    and sentence for the offenses of rape, gross sexual imposition, and kidnaping, but
    remanded to correct the sentencing journal entry to reflect what transpired at the
    sentencing hearing regarding costs.   We decline to reopen McSwain’s appeal.
    {¶2} App.R. 26(B)(2)(b) requires that McSwain 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.
    (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. * * * The 90-day 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 [the applicant] 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
    , ¶ 7. 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
    , 
    653 N.E.2d 252
    (1995); State v. Reddick, 72 Ohio
    St.3d 88, 
    647 N.E.2d 784
    (1995).
    {¶3} Herein, McSwain is attempting to reopen the appellate judgment that was
    journalized on November 9, 2017. The application for reopening was not filed until
    February 16, 2018, more than 90 days after journalization of the appellate judgment in
    
    McSwain, supra
    . McSwain has failed to argue any showing of good cause for the
    untimely filing of his application for reopening. State v. McCrimon, 8th Dist. Cuyahoga
    No. 87617, 2017-Ohio-5742; State v. Battiste, 8th Dist. Cuyahoga No. 102299,
    2017-Ohio-8300; State v. Hammond, 8th Dist. Cuyahoga No. 100656, 2016-Ohio-8300.
    {¶4} Accordingly, the application for reopening is denied.
    PATRICIA ANN BLACKMON, JUDGE
    EILEEN A. GALLAGHER, A.J., and
    ANITA LASTER MAYS, J., CONCUR
    

Document Info

Docket Number: 105451

Citation Numbers: 2018 Ohio 1827

Judges: Blackmon

Filed Date: 5/7/2018

Precedential Status: Precedential

Modified Date: 5/10/2018