State v. Howell , 2020 Ohio 377 ( 2020 )

[Cite as State v. Howell, 2020-Ohio-377.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 107545
v. :
SLATTER HOWELL, III, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: APPLICATION DENIED
RELEASED AND JOURNALIZED: February 3, 2020
Cuyahoga County Court of Common Pleas
Case Nos. CR-16-603024-A and CR-16-606767-A
Application for Reopening
Motion No. 534174
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Mary M. Frey, Assistant Prosecuting
Attorney, for appellee.
Slatter Howell, III, pro se.
PATRICIA ANN BLACKMON, J.:
Applicant, Slatter Howell, III, seeks to reopen his appeal, State v.
Howell, 8th Dist. Cuyahoga No. 107545, 2019-Ohio-3182. In his application, he
claims that appellate counsel was ineffective for not arguing the following proposed
assignments of error:
I. Howell’s convictions are against the manifest weight and sufficiency
of evidence, in violation of his Due Process protections under the Fifth
and Fourteenth Amendments to the U.S. Constitution and Article I,
Section 10 of the Ohio Constitution.
II. Howell was denied a fair trial and his due process protections when
the trial court improperly interjected its opinion during jury
instructions, in violation of the Fifth and Fourteenth Amendments to
the U.S. Constitution and Article I, Section 5 and 10 of the Ohio
Constitution.
III. Howell was denied a fair trial and his due process protections when
the trial court denied the defense’s request for a Daubert hearing, in
violation of the Fifth and Fourteenth Amendments to the U.S.
Constitution and Article I, Section 5 and 10 of the Ohio Constitution.
Howell’s application is untimely without a showing of good cause, and
is, therefore, denied.
A detailed recitation of the facts can be found in Howell, but a brief
summary of the apposite facts follows. Howell was convicted of numerous crimes
related to three separate incidents. The first involved an attack on Joe Houston. The
second incident involved the robbery of a gas station in which the clerk, Babul Saha,
was shot and killed. The third involved the robbery and killing of Theodore Wright.
Howell received a sentence of life without the possibility of parole plus 19 years.
Howell at ¶ 3-19.
On appeal, Howell, through counsel, raised three assignments of
error:
I. Mr. Howell was denied his constitutional right to the effective
assistance of counsel when, after being accused of witness tampering
and attempting to suborn perjury, his attorneys simply declared their
innocence rather than asking the trial court to make findings and
demanding a mistrial.
II. The trial court’s comments bolstering the credibility of the
government’s DNA “expert” prejudiced Mr. Howell’s defense.
III. The trial court committed error when it imposed consecutive
sentences because its finding that consecutive sentences were
necessary to protect the public is altogether unsupportable and
irrational.
Id. at ¶ 1.
In an opinion issued on August 8, 2019, this court rejected these
arguments and affirmed Howell’s convictions and sentences. Id. at ¶ 33. Howell
then filed an application to reopen his appeal based on claims of ineffective
assistance of appellate counsel on December 5, 2019. Howell attached a separate
document to his application where he asserted that he was unable to timely file the
application because he was hospitalized for eight days and a series of fights
prevented him from completing the application on time. The state timely opposed
the application on grounds of untimeliness.
Standards for a Timely Application to Reopen
App.R. 26(B) provides a limited means of asserting a claim that
appellate counsel’s performance was so deficient that an appellant should have a
second opportunity to assert issues on appeal. The application must be filed within
90 days of the date of journalization of the appellate decision. App.R. 26(B)(1). The
Supreme Court of Ohio has specified that this deadline is to be strictly enforced.
State v. LaMar, 102 Ohio St. 3d 467, 2004-Ohio-3976, 812 N.E.2d 970; State v.
Gumm, 103 Ohio St. 3d 162, 2004-Ohio-4755, 814 N.E.2d 861. If the application is
filed after that date, it must contain a showing of good cause for the untimely filing.
App.R. 26(B)(1) and (B)(2)(b).
Here, Howell’s December 5, 2019 application was filed 119 days after
the appellate decision was journalized on August 8, 2019. The application does not
contain any argument as to why filing after the 90-day deadline should be excused.
The failure to assert good cause is sufficient grounds for denial. State v. Woods, 8th
Dist. Cuyahoga No. 82789, 2014-Ohio-296, ¶ 4, citing State v. McNeal, 8th Dist.
Cuyahoga No. 91507, 2009-Ohio-6453, ¶ 4.
Further, the application, including arguments supporting good cause
for any delay in filing, is limited to ten pages. App.R. 26(B)(2)(b) and (B)(4).
Howell’s attempt to argue good cause outside of his application is an improper
attempt to circumvent the page limitation set forth in App.R. 26(B)(4). State v.
Glaze, 8th Dist. Cuyahoga No. 105519, 2018-Ohio-4772, ¶ 8. Where good cause for
an untimely filing of an application is not contained within the application itself, it
must be denied. Glaze at ¶ 11, citing State v. Jarrells, 8th Dist. Cuyahoga No. 99329,
2014-Ohio-4564, ¶ 8, citing Gumm, 103 Ohio St. 3d 162, 2004-Ohio-4755, 814
N.E.2d 861; LaMar, 102 Ohio St. 3d 467, 2004-Ohio-3976, 812 N.E.2d 970. The
application is denied because Howell has failed to set forth any excuse for the
untimely filing in the application.
The justifications asserted in the document attached to Howell’s
application for reopening are not sufficient to establish that the delay in filing should
be excused even if this court were to consider them. Howell asserts that his
application is tardy because he was involved in a fight in prison and was hospitalized
for eight days. Assuming without deciding that this constitutes good cause,
subtracting this eight days from the total period of time within which the application
was filed, still leads to the conclusion that it was untimely by 21 days.
Howell further asserts that a series of fights prevented him from
timely filing his application. He alleges that as a result of these incidents, he was
housed in administrative segregation. An alleged limited access to legal materials,
library facilities, or other legal resources does not constitute good cause. State v.
Hedenberg, 8th Dist. Cuyahoga No. 102112, 2016-Ohio-3318, ¶ 4, citing State v.
Houston, 73 Ohio St. 3d 346, 652 N.E.2d 1018 (1995); State v. Lawson, 8th Dist.
Cuyahoga No. 84402, 2006-Ohio-3839. Howell has failed to establish good cause
for the delayed filing even when his extrinsic assertions are considered.
Application denied.
PATRICIA ANN BLACKMON, JUDGE
EILEEN T. GALLAGHER, A.J., and
MARY EILEEN KILBANE, P.J., CONCUR