State v. Young , 2022 Ohio 308 ( 2022 )

[Cite as State v. Young, 2022-Ohio-308.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 109169
v. :
CORTEZ YOUNG, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: APPLICATION DENIED
RELEASED AND JOURNALIZED: February 2, 2022
Cuyahoga County Court of Common Pleas
Case No. CR-18-627836-A
Application for Reopening
Motion No. 551973
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Blaise Thomas, Assistant Prosecuting
Attorney, for appellee.
Cortez Young, pro se.
ANITA LASTER MAYS, J.:
On January 18, 2022, the applicant, Cortez Young, pursuant to
App.R. 26(B), applied to reopen this court’s judgment in State v. Young, 8th Dist.
Cuyahoga No. 109619, 2020-Ohio-5429, in which this court affirmed his convictions
and sentences for three counts of felonious assault, and one count each of murder,
attempted murder, and improper discharge of a firearm. Young now submits that
his appellate counsel should have argued the following: (1) the trial court erred in
applying an unauthorized period of five years mandatory postrelease control to the
unclassified felony of murder, (2) the trial court erred in failing to impose any
mandatory or nonmandatory period of postrelease control in its judgment entry,
and (3) the trial court’s sentence is contrary to law when it imposed consecutive
firearm specifications for a single act. For the following reasons, this court denies
the application to reopen.
I. Background and Facts
When Young saw his girlfriend (“L.R.”) with another man (“O.M.”),
he choked L.R. and pointed a firearm at O.M. and threatened to kill him. For these
actions, Young in January 2018, pleaded guilty to attempted abduction and
misdemeanor domestic violence and was placed on community control. The couple
subsequently ended their relationship.
On April 1, 2018, Young was driving his new girlfriend’s Jeep back to
her residence, when he saw L.R. driving with O.M. as in the previous incident.
Young pulled up on the driver’s side of L.R.’s vehicle and fired several shots into the
car. L.R. was shot in the stomach and the arm, but drove away. Young pursued and
rammed the Jeep into the rear of L.R.’s car, causing it to spin out of control, striking
three trees and a chain link fence. O.M. was ejected from the car and died 16 hours
later from the blunt impact from being thrown out of the car. Young fled the scene.
At trial, Young testified that he thought he saw a muzzle flash and
heard a gunshot, and thus, he returned fire in self-defense. He explained the
damage to the Jeep because in the confusion, the car struck a tree.
A jury convicted him of murder of O.M., two counts of felonious
assault against O.M., attempted murder of L.R., two counts of felonious assault
against L.R., and one count of discharge of a firearm on or near prohibited premises.
Most of the charges included one-, three-, and five-year firearm specifications. After
merging offenses, the trial judge sentenced the then 47-year-old Young to a total of
11 years on the firearm specifications, to 15 years to life for murder, to 10 years for
attempted murder and to 3 years for the improper discharge of the firearm, all
consecutive, for a total sentence of 39 years to life. The sentencing entry included:
“Postrelease control is part of this prison sentence for the above felony(s) under
R.C. 2967.28.” Journal entry No. 110734553, p.2 (Oct. 15, 2019).
Young’s appellate counsel argued that (1) the convictions were not
supported by sufficient evidence given the burden of proof regarding self-defense,
(2) the convictions were against the manifest weight of the evidence, (3)
introduction of the January 2018 convictions was improper under Evid.R. 404(B),
(4) the prosecution did not disclose some discovery until the morning of the trial,
(5) cumulative error required reversal, and (6) consecutive sentences were not
supported by the record. Young now argues that this appellate counsel was
ineffective for not arguing improper imposition of postrelease control and improper
consecutive sentences for firearm specifications.
II. Standard of Review Applicable to App.R. 26(B) Application for
Reopening
App.R. 26(B)(1) and (2)(b) require applications claiming ineffective
assistance of appellate counsel to be filed within 90 days from journalization of the
decision unless the applicant shows good cause for filing at a later time. The
January 18, 2022 application was filed more than 400 days after this court’s
November 25, 2020 decision. Thus, the application is untimely on its face.
In an effort to show good cause Young argues that he asked his
appellate attorney to send him a copy of his transcript, but the attorney delayed five
months before sending it. The transcript did not arrive until April 27, 2021. Young
pleads that if he had received the transcript in a timely fashion, “there’s no doubt
the Appellant would have filed a timely 26(B) application in this Court.” Young’s
application, p. 3-4. Thus, he is arguing that reliance on counsel and lack of a
transcript provided good cause.
However, this argument is not well founded. This court has
repeatedly held that difficulty in obtaining the transcript does not constitute good
cause. In State v. Towns, 8th Dist. Cuyahoga No. 71244, 1997 Ohio App. LEXIS
4709 (Oct. 23, 1997), reopening disallowed, 2000 Ohio App. LEXIS 2030 (May 4,
2000), the applicant endeavored to show good cause for untimely filing by arguing
that his counsel was uncooperative and refused to send him any documents
concerning the case. This court rejected that argument, ruling that “being a layman
and experiencing delays in obtaining records related to one’s conviction are not
sufficient bases for establishing good cause for untimely filing of an application for
reopening.” State v. Towns, 8th Dist. Cuyahoga No. 71244, 2000 Ohio App. LEXIS
2030 at 3. State v. Chandler, 8th Dist. Cuyahoga No. 59764, 1992 Ohio App. LEXIS
975 (Mar. 5, 1992), reopening disallowed, 2001 Ohio App. LEXIS 3624 (Aug. 13,
2001) — counsel’s delay in sending applicant the transcript was not good cause.
State v. Lawson, 8th Dist. Cuyahoga No. 84402, 2005-Ohio-88o, reopening
disallowed, 2006-Ohio-3839. State v. Nagy, 8th Dist. Cuyahoga No. 105935, 2018-
Ohio-1513, reopening disallowed, 2019-Ohio-2319.
Moreover, the Supreme Court of Ohio 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, held that the 90-day deadline for filing must
be strictly enforced. In those cases, the applicants argued that after the court of
appeals decided their cases, their appellate lawyers continued to represent them,
and their appellate lawyers could not be expected to raise their own incompetence.
Although the Supreme Court agreed with this latter principle, it rejected the
argument that continued representation provided good cause. In both cases, the
court ruled that the applicants could not ignore the 90-day deadline, even if it meant
retaining new counsel or filing the applications themselves. The court then
reaffirmed the principle that lack of effort, lack of imagination, and ignorance of the
law do not establish good cause for failure to seek timely relief under App.R. 26(B).
Thus, Young’s attorney’s delay in sending the transcript does not state good cause.
Accordingly, the court denies the application to reopen.
ANITA LASTER MAYS, JUDGE
SEAN C. GALLAGHER, A.J., and
MARY EILEEN KILBANE, J., CONCUR