State v. Parker , 2023 Ohio 802 ( 2023 )

[Cite as State v. Parker, 2023-Ohio-802.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO,
:
Plaintiff-Appellee,
: No. 110563
v.
:
ALTON PARKER, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: APPLICATION DENIED
RELEASED AND JOURNALIZED: March 9, 2023
Cuyahoga County Court of Common Pleas
Case No. CR-18-629839-A
Application for Reopening
Motion No. 561669
Appearances:
Alton Parker, pro se.
MICHAEL JOHN RYAN, J.:
Applicant, Alton Parker, seeks leave to file a successive application to
reopen his appeal in State v. Parker, 8th Dist. Cuyahoga No. 110563, 2022-Ohio-
377. Alton raises and argues speedy-trial claims in a second application to reopen
combined with this motion for leave. Parker’s motion and application are denied
because successive applications for reopening are not permitted.
Procedural and Factual History
Parker was convicted of rape, kidnapping, and sexual battery for
which he received an aggregate 33-year prison sentence. A timely appeal was filed,
and Parker was assigned counsel. Appellate counsel raised a single assignment of
error: “The trial court erred when it refused to provide a lesser included jury
instruction supported by evidence on sexual battery related to” one of the victims.
In an opinion issued on February 10, 2022, this court overruled the assigned error
and affirmed Parker’s convictions.
On March 10, 2022, Parker timely filed an application to reopen his
appeal arguing that appellate counsel was ineffective for not advancing the following
claims:
The trial court erred by imposing consecutive sentences that were
clearly and convincingly unsupported by the record and contrary to
law.
The trial court violated the Double Jeopardy Clause when it failed to
merge all allied offenses of similar import.
The trial court prejudiced appellant to an unfair trial in failing to
severance [sic] all separate victims.
This court denied the application to reopen in an opinion issued July 1, 2022. State
v. Parker, 8th Dist. Cuyahoga No. 110563, 2022-Ohio-2355. Parker appealed this
decision to the Supreme Court of Ohio, but it declined further review. 10/25/2022
Case Announcements, 168 Ohio St.3d 1419, 2022-Ohio-3752, 196 N.E.3d 856.
On January 31, 2023, Parker filed the instant combined motion for
leave and application, titled as written:
Applicant/Appellant/Petitioner/Application/Motion Seeking Leave to
File Successive Application to Reopen Direct Appeal 26(B) Appellate
Rule Ineffective Assistance Of [sic] The Appellate Counsel – Failure to
Raise & [sic] Speedy Trial Violation Trial Court Created Structure
Defects In The Constitution Trial Mechanic Denying
Defendant/Appellant Constitutional Rights To A Fast & Speedy Trial
6th & 14th U.S. Constitutional Amendments, And Ohio Bill Of Rights:
Article I, [Sections] 2, 10, And 16.
In this filing, apart from seeking leave to file a successive application, Parker argued
that his speedy trial rights were violated and appellate counsel was ineffective for
not arguing the issue. The state did not file an opposition to the successive filing.
Law and Analysis
App.R. 26(B) provides a limited means of asserting claims of
ineffective assistance of appellate counsel. The rule provides for the filing of an
application to reopen within 90 days of the journalization of the appellate decision.
App.R. 26(B)(1). Where the application raises a colorable claim of ineffective
assistance of counsel, an appellate court should grant the application, reopen the
appeal, and assign new counsel to argue the errors or issues raised in the application.
State v. Leyh, 166 Ohio St.3d 365, 2022-Ohio-292, 185 N.E.3d 1075, ¶ 21-22.
Parker has previously litigated the claimed ineffectiveness of his
appellate counsel. Parker, 8th Dist. Cuyahoga No. 110563, 2022-Ohio-2355. The
claim he now raises could have been raised in that application. Parker failed to
advance this claim in his earlier application, and this is determinative of his present
motion and application.
“There exists no right to file successive applications for reopening
under App.R. 26(B).” State v. Timmons, 8th Dist. Cuyahoga Nos. 105940, 105941,
and 105942, 2019-Ohio-3506, ¶ 8, citing State v. Williams, 99 Ohio St.3d 179, 2003-
Ohio-3079, 790 N.E.2d 299. See also State v. Richardson, 74 Ohio St.3d 235, 658
N.E.2d 273 (1996); State v. Cheren, 73 Ohio St.3d 137, 138, 652 N.E.2d 707 (1995).
“‘“Once ineffective assistance of counsel has been raised and adjudicated, res
judicata bars its relitigation.”’” State v. Twyford, 106 Ohio St.3d 176, 2005-Ohio-
4380, 833 N.E.2d 289, ¶ 6, quoting State v. Williams, 99 Ohio St.3d 179, 2003-
Ohio-3079, 790 N.E.2d 299, ¶ 10, quoting State v. Cheren, 73 Ohio St.3d 137, 138,
652 N.E.2d 707 (1995).
Parker has already litigated claims of ineffective assistance of
appellate counsel in his prior application to reopen. The speedy-trial claim he now
raises was required to be asserted in that application. His failure to do so bars
further litigation of the effectiveness of his appellate counsel. Therefore, leave to file
a successive application to reopen is denied. To the extent that Parker’s filing
constitutes a separate application for reopening, it too, is denied.
Application denied.
________________________
MICHAEL JOHN RYAN, JUDGE
EILEEN A. GALLAGHER, P.J., and
EILEEN T. GALLAGHER, J., CONCUR
KEYWORDS: Application for reopening; App.R. 26(B); successive applications;
motion for leave to file successive application; res judicata.
A motion for leave to file a successive application for reopening was denied because
there is no provision in App.R. 26(B) for successive applications and res judicata
bars relitigation of claims of ineffective assistance of appellate counsel for claims not
raised in the prior application for reopening.