State v. Pate , 2011 Ohio 5172 ( 2011 )

[Cite as State v. Pate, 2011-Ohio-5172.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95382
STATE OF OHIO
RELATOR
vs.
DONALD PATE, JR.
RESPONDENT
JUDGMENT:
APPLICATION DENIED
Cuyahoga County Court of Common Pleas
Case No. CR-535104
Application for Reopening
Motion No. 447737
RELEASED DATE: October 5, 2011
ATTORNEY FOR APPELLANT
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Donald Pate, Pro Se
Inmate No. 590-232
Trumbull Correctional Institution
P. O. Box 901
Leavittsburg, OH 44430
ATTORNEYS OR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, P.J.:
{¶ 1} In State v. Pate, Cuyahoga County Court of Common Pleas Case No.
CR-535104, applicant, Donald Pate, Jr., was convicted of aggravated robbery and
robbery of one victim. This court affirmed the convictions but remanded the case
to the trial court for merger of the allied offenses of similar import. “Since there
was only one act of robbery, Pate should be convicted of only one of the two
offenses.” State v. Pate, Cuyahoga App. No. 95382, 2011-Ohio-1692, ¶36, n.1.
The Supreme Court of Ohio denied applicant's motion for delayed appeal. State v.
Pate, 129 Ohio St.3d 1448, 2011-Ohio-4217, 951 N.E.2d 1045.
3
{¶ 2} Pate 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 that the “cold stand” during which the
victim identified Pate was unduly suggestive. 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 April 7, 2011. The application was filed on September 14, 2011, clearly in
excess of the ninety-day limit.
{¶ 5} Pate argues that he has good cause for filing in excess of 90 days. He
“never heard from [his] Appellate Counsel giving [him this court’s April 7, 2011
journal entry and opinion].” Pate’s Affidavit of Good Cause. Pate also avers
that: he was transferred from the Trumbull Correctional Institution (“T.C.I.”) to
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the Cuyahoga County jail for resentencing; he had no access to legal material or a
law library while at the jail; and upon his return to T.C.I., he had no access to legal
material prior to July 20, 2011. “Since then I’ve [been] unsuccessful with getting
my transcripts.” Id.{¶ 6} “[T]his court has consistently ruled that the failure of appellate counsel
to notify the applicant of the court’s decision or the applicant's ignorance of the
decision does not state good cause for untimely filing.” State v. West, Cuyahoga
App. No. 92508, 2009-Ohio-6217, reopening disallowed, 2010-Ohio-5576, ¶4
(citations deleted). Likewise, “difficulty in obtaining a transcript or limited access
to legal materials does not establish good cause for the untimely filing of an
application for reopening.” State v. Huber, Cuyahoga App. No. 93923,
2011-Ohio-62, reopening disallowed, 2011-Ohio-3240, ¶6 (citations deleted).
Obviously, this court has previously determined that each of the grounds asserted
by Pate does not establish good cause for the untimely filing of his application for
reopening.
{¶ 7} 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).
5
See, e.g., State v. Gumm, 103 Ohio St.3d 162, 2004-Ohio-4755, 814 N.E.2d 861;
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 also: State v. Collier (June 11, 1987), Cuyahoga
App. No. 51993, reopening disallowed 2005-Ohio-5797, Motion No. 370333; State
v. Garcia (July 8, 1999), Cuyahoga App. No. 74427, reopening disallowed
2005-Ohio-5796, Motion No. 370916.
{¶ 8} As a consequence, applicant has not met the standard for reopening.
Accordingly, the application for reopening is denied.
PATRICIA ANN BLACKMON, PRESIDING JUDGE
MARY BOYLE, J., and
SEAN C. GALLAGHER, J., CONCUR