State v. Austin , 2012 Ohio 1338 ( 2012 )

[Cite as State v. Austin, 2012-Ohio-1338.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 87169
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
KEVIN AUSTIN
DEFENDANT-APPELLANT
JUDGMENT:
APPLICATION DENIED
Cuyahoga County Common Pleas Court
Case No. CR-445932
Application for Reopening
Motion No. 448790
RELEASE DATE: March 27, 2012
FOR APPELLANT
Kevin Austin, pro se
Inmate No. 481-187
Grafton Correctional Institution
2500 S. Avon Belden Road
Grafton, OH 44044
ATTORNEYS FOR RESPONDENT
William D. Mason
Cuyahoga County Prosecutor
By: T. Allan Regas
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
MELODY J. STEWART, P J.:
{¶1} In State v. Austin, Cuyahoga County Court of Common Pleas Case No.
CR-445932, applicant, Kevin Austin, pled guilty to aggravated murder with a one-year
firearm specification. This court affirmed that judgment in State v. Austin, 8th Dist. No.
87169, 2006-Ohio-4120. The Supreme Court of Ohio denied applicant’s motion for
leave to appeal and dismissed the appeal as not involving any substantial constitutional
question. State v. Austin, 114 Ohio St.3d 1479, 2007-Ohio-3699, 870 N.E.2d 731.
{¶2} Applicant has filed with the clerk of this court an application for reopening.
Applicant asserts that he was denied the effective assistance of appellate counsel because
appellate counsel did not assign as error that trial counsel was ineffective for failing “to
investigate defendant’s mental disorders, mental impairments and Post Traumatic Stress
Disorder * * * .” (Capitalization in original.) Application at 2. We deny the
application for reopening. As required by App.R. 26(B)(6), the reasons for our denial
follow.
{¶3} Initially, we note that App.R. 26(B)(1) provides, in part: “An application
for reopening shall be filed * * * within ninety days from journalization of the appellate
judgment unless the applicant shows good cause for filing at a later time.” App.R.
26(B)(2)(b) requires that an application for reopening include “a showing of good cause
for untimely filing if the application is filed more than ninety days after journalization of
the appellate judgment.”
{¶4} This court’s decision affirming applicant’s conviction was journalized on
August 21, 2006. The application was filed on October 24, 2011, clearly in excess of
the ninety-day limit.
{¶5} Austin argues that he has good cause for the five-year delay in the filing of
his application. He avers that he has a long history of mental disorders which interfered
with his ability to file his application for reopening. He also states that he relied on the
advice of an inmate legal clerk to assist him in preparing this application.
{¶6} The state has opposed Austin’s application and observes that, in 2008, he
filed pro se a motion for leave to withdraw his guilty plea and for resentencing in the
underlying case. Also, in 2009, Austin appealed pro se the denial of his motion for
leave to withdraw guilty plea and for resentencing. This court affirmed. State v.
Austin, 8th Dist. No. 93028, 2009-Ohio-6108.
{¶7} The state contends that, if Austin was able to file and prosecute pro se both
his motion and an appeal on the merits in 2008 and 2009, he was capable of filing his
application for reopening no later than 2009. Austin argues, however, that he required
the assistance of an inmate legal clerk to prepare his filings with the courts.
{¶8} “Just as this court has ruled that misplaced reliance on an attorney does not
state sufficient good cause to justify untimely filing, so, too, misplaced reliance on a
fellow inmate who is not even an attorney must also fail to state good cause. Thus,
[applicant’s] application to reopen is denied as untimely.” State v. Sizemore, 126 Ohio
App.3d 143, 146, 709 N.E.2d 943 (8th Dist. 1998). Austin’s reliance on another inmate
does not, therefore, demonstrate good cause for the delay in filing this application for
reopening.
{¶9} Austin also states that he “has suffered a long history of mental health issues,
which have prevented him from timely and properly raising these issues in a court of law,
in pursuit of his legal interests.” Application at 3. He indicates that “he suffers from
periods of disassociation from his primary personality due to schizoaffective disorder,”
Id., has post-traumatic stress disorder due to three head injuries in 1988 while serving in
the military and has been treated with psychiatric medications which affect his cognitive
ability.
{¶10} In State v. Brooks, 8th Dist. No. 94978, 2011-Ohio-1679, reopening
disallowed, 2012-Ohio-915, the applicant argued that he had good cause for the untimely
filing of his application for reopening. Brooks stated that he had a mental health issue
which interfered with his ability to work on motions and that he requested help from other
inmates. He also attached mental health assessments from the Department of
Rehabilitation and Correction (“ODRC”). This court noted that Brooks had submitted
unauthenticated records and had made other court filings pro se. Also, ODRC
categorized Brooks’s condition “as ‘C2,’ non-serious mental illness, a lesser mental
impairment.” Id. at ¶ 10. This court concluded that Brooks had “not demonstrated that
his mental illness prevented him from timely filing the application.” As a consequence,
this court held “that Brooks’s claim of mental illness [did] not establish good cause for
the untimely filing of his application.” Id.
{¶11} Austin has made essentially the same arguments as Brooks. Austin asserts
that his mental health issues have prevented him from being able to prepare a timely
application and that he has had to rely on the help of another inmate. Austin has also
submitted unauthenticated records regarding his various treatments and medications.
Among these is a “Mental Health Treatment Plan” which he identifies as being from the
ODRC. The “C Code” listed on the treatment plan is C2, the same non-serious mental
illness category as in Brooks. We must, therefore, conclude as this court did in Brooks
that Austin has not demonstrated that his mental health issues have prevented him from
filing a timely application for reopening. As a consequence, we must hold that Austin
has failed to establish good cause for the untimely filing of his application for reopening.
{¶12} The Supreme Court has upheld judgments denying applications for
reopening solely on the basis that the application was not timely filed and the applicant
failed to show “good cause for filing at a later time.” App.R. 26(B)(1). E.g., State v.
Gumm, 103 Ohio St.3d 162, 2004-Ohio-4755, 814 N.E.2d 861, and State v. LaMar, 102
Ohio St.3d 467, 2004-Ohio-3976, 812 N.E.2d 970. Applicant’s failure to demonstrate
good cause is a sufficient basis for denying the application for reopening. See, e.g.,State
v. Almashni, 8th Dist. No. 92237, 2010-Ohio-898, reopening disallowed, 2012-Ohio-349.
{¶13} As a consequence, applicant has not met the standard for reopening.
Accordingly, the application for reopening is denied.
MELODY J. STEWART, PRESIDING JUDGE
KENNETH A. ROCCO, J., and
KATHLEEN ANN KEOUGH, J., CONCUR