State v. Brooks , 2012 Ohio 915 ( 2012 )

[Cite as State v. Brooks, 2012-Ohio-915.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 94978
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
JOHN BROOKS
DEFENDANT-APPELLANT
JUDGMENT:
APPLICATION DENIED
Cuyahoga County Common Pleas Court
Case No. CR-509212
Application for Reopening
Motion Nos. 446035, 446222 and 446223
RELEASE DATE: March 7, 2012
FOR APPELLANT
John S. Brooks, pro se
Inmate No. 582-900
Marion Correctional Inst.
P. O. Box 57
Marion, OH 43301
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
By: Kristen L. Sobieski
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
KENNETH A. ROCCO, J.:
{¶1} In State v. Brooks, Cuyahoga County Court of Common Pleas Case No.
CR-509212, applicant was convicted of drug trafficking and possession as well as
weapons charges and possession of criminal tools. This court affirmed that judgment in
State v. Brooks, 8th Dist. No. 94978, 2011-Ohio-1679. The Supreme Court of Ohio
denied Brooks’s pro se motion for delayed appeal and dismissed the appeal. State v.
Brooks, 129 Ohio St.3d 1447, 2011-Ohio-4217, 951 N.E.2d 1044.
{¶2} Brooks has filed with the clerk of this court an application for reopening. He
asserts that he was denied the effective assistance of appellate counsel because his
appellate counsel did not assign as error the ineffectiveness of trial counsel because trial
counsel did not challenge the propriety of the search and did not object to the admission
of certain exhibits. 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 90 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
April 7, 2011. The application was filed on July 11, 2011, in excess of the 90-day limit.1
{¶5} Brooks also filed on July 11, 2011 a “judicial notice” in which he states that
he has a “mental health issue which makes it very hard for me to work on these motion’s
[sic], I’m asking for help from other inmate’s [sic] so that I can prove my innocence,
while being timely in filing.” Judicial Notice, at 1. He also states that he has had a
“problem with this institution telling me that I don’t have enough monies to send these
motion’s [sic] until I receive state pay * * * .” Id. Additionally, he has attached
“Mental Health assessment’s [sic] from the Department of Corrections and Affidavit of
Indigence from Marion Correctional Facility.” Id. He requests that this court “not hold
it against me for being late.” Id.Days Month
1
23 April
31 May
30 June
11 July
95 TOTAL
Wednesday, July 6, 2011, was the ninetieth day.
{¶6} Brooks supports his claim of mental illness with unauthenticated records
reflecting that Brooks has been diagnosed with non-serious mental illness with respect to
which no specialized mental health services are required. Also, he was determined to be
“stable on [psychiatric] meds” on May 17, 2011, more than seven weeks before his
application for reopening was due.
{¶7} We also note that on June 7, 2011, Brooks filed pro se both a notice of appeal
and motion for delayed appeal in the Supreme Court of Ohio, Case No. 2001-0955. See
129 Ohio St.3d 1447, supra.
{¶8} The parties have not provided nor has this court has been able to identify any
controlling authority which articulates a standard for reviewing Brooks’s claim that his
mental illness establishes good cause. Brooks’s claim of good cause requires us to
consider whether unauthenticated records merely demonstrating the presence of a mental
illness are a sufficient basis to establish good cause for the untimely filing of an
application for reopening.
{¶9} In State v. Morris, 10th Dist. No. 05AP-1032, 2007-Ohio-2382, reopening
disallowed, 2010-Ohio-786, the applicant asserted that he could
establish good cause for his untimely filing, due to his alleged diagnosis and
classification by the Ohio Department of Rehabilitation and Corrections as
“seriously mentally ill” under a “C1" standard. However, the documents
submitted by defendant fail to explain whether he is classified as a “C1
categorical” or a “C1 functional.”
Defendant unsuccessfully advanced this same argument in his petition for
habeas relief in federal district court, whereby he claimed he had
established cause for failing to exhaust state court remedies. See Morris v.
Kerns (Sept. 2, 2009), S.D.Ohio No. 2:08--1176. We too reject the
argument that his alleged classification as “seriously mentally ill” under a
“C1" standard establishes good cause for his untimely filing. There is
nothing in the record to support his claim that his mental health issues
prevented him from filing a timely application to reopen. See also State v.
Haliym (Aug. 27, 2001), 8th Dist. No. 54771 (court rejected the defendant’s
claim of mental impairment arising from a gunshot wound to the head as
sufficient to establish good cause for waiting more than ten years to file his
application). Id. at ¶ 9-10.
{¶10} Likewise, in this case, Brooks has not demonstrated that his mental illness
prevented him from timely filing the application. Indeed, in Morris, the applicant was
categorized as “C1,” serious mental illness. Brooks is categorized as “C2,” non-serious
mental illness, a lesser mental impairment We hold, therefore, that Brooks’s claim of
mental illness does not establish good cause for the untimely filing of his application.
{¶11} Additionally, his lack of funds to mail his application does not establish
good cause for the untimely filing of an application for reopening. See, e.g., State v.
Graves, 8th Dist. No. 88845, 2007-Ohio-5430, reopening disallowed, 2010-Ohio-4881(indigence does not establish good cause for the untimely filing of an application for
reopening); see also State v. Braddy, 8th Dist. No. 83462, 2004-Ohio-3128, reopening
disallowed, 2005-Ohio-282 (lack of adequate funds to mail an application for reopening
does not establish good cause for untimely filing).
{¶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. Brooks’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, Brooks has not met the standard for reopening.
Accordingly, the application for reopening is denied.
KENNETH A. ROCCO, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and
JAMES J. SWEENEY, J., CONCUR