State v. Carano , 2023 Ohio 1363 ( 2023 )

[Cite as State v. Carano, 2023-Ohio-1363.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 111248
v. :
SHANNON CARANO, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: APPLICATION DENIED
RELEASED AND JOURNALIZED: April 24, 2023
Cuyahoga County Court of Common Pleas
Case No. CR-21-658104-A
Application for Reopening
Motion No. 561640
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Daniel T. Van, Assistant Prosecuting
Attorney, for appellee.
Shannon Carano, pro se.
FRANK DANIEL CELEBREZZE, III, P.J.:
Shannon Carano has filed an application for reopening pursuant to
App.R. 26(B). Carano is attempting to reopen the appellate judgment rendered in
State v. Carano, 8th Dist. Cuyahoga No. 111248, 2022-Ohio-2872, that affirmed her
plea of guilty to the offenses of five counts of pandering sexually oriented matter
involving a minor (R.C. 2907.322(A)(2)), six counts of pandering sexually oriented
matter involving a minor (R.C. 2907.322(A)(5)), and one count of illegal use of
minor in nudity-oriented material or performance (R.C. 2907.323(A)(3)), and the
sentences imposed in State v. Carano, Cuyahoga C.P. No. CR-21-658104-A. We
decline to reopen Carano’s appeal.
I. Untimely Filed Application for Reopening – Good Cause Required
App.R. 26(B)(2)(b) requires that Carano establish “a showing of good
cause for untimely filing if the application is filed more than 90 days after
journalization of the appellate judgment” that is subject to reopening. The Supreme
Court of Ohio, with regard to the 90-day deadline provided by App.R. 26(B)(2)(b),
has established that
[w]e now reject [the applicant’s] claims that those excuses gave good
cause to miss the 90-day deadline in App.R. 26(B). * * * Consistent
enforcement of the rule’s deadline by the appellate courts in Ohio
protects on the one hand the state’s legitimate interest in the finality of
its judgments and ensures on the other hand that any claims of
ineffective assistance of appellate counsel are promptly examined and
resolved.
Ohio and other states “may erect reasonable procedural requirements
for triggering the right to an adjudication,” Logan v. Zimmerman
Brush Co. (1982), 455 U.S. 422, 437, 102 S.Ct. 1148, 71 L.Ed.2d 265,
and that is what Ohio has done by creating a 90-day deadline for the
filing of applications to reopen. * * * The 90-day requirement in the
rule is “applicable to all appellants,” State v. Winstead (1996), 74 Ohio
St.3d 277, 278, 658 N.E.2d 722, and [the applicant] offers no sound
reason why he — unlike so many other Ohio criminal defendants —
could not comply with that fundamental aspect of the rule.
(Emphasis added.) State v. Gumm, 103 Ohio St.3d 162, 2004-Ohio-4755, 814
N.E.2d 861, ¶ 7. See also State v. Lamar, 102 Ohio St.3d 467, 2004-Ohio-3976, 812
N.E.2d 970; State v. Cooey, 73 Ohio St.3d 411, 653 N.E.2d 252 (1995); State v.
Reddick, 72 Ohio St.3d 88, 647 N.E.2d 784 (1995).
Herein, Carano is attempting to reopen the appellate judgment
journalized on August 18, 2022. The application for reopening was not filed until
January 30, 2023, more than 90 days after journalization of the appellate judgment
in Carano, supra. Carano claims that 1) she did not timely receive notice from
appellate counsel with regard to the ability to file an App.R. 26(B) application for
reopening; and 2) detrimental reliance upon the legal advice provided by appellate
counsel. Carano has failed to demonstrate any viable showing of good cause for the
untimely filing of her application for reopening.
The arguments raised by Carano, in support of her good-cause
argument, do not establish a valid basis for the untimely filing of her App.R. 26(B)
application for reopening. In State v. Lamar, 8th Dist. Cuyahoga No. 49551, 1985
Ohio App. LEXIS 7284 (Oct. 3, 1985), reopening disallowed (Nov. 15, 1995), Motion
No. 63398, this court held that lack of communication with appellate counsel did
not show good cause. See also State v. Jarrells, 8th Dist. Cuyahoga No. 99329,
2014-Ohio-4564. Similarly, in State v. White, 8th Dist. Cuyahoga No. 57944, 1991
Ohio App. LEXIS 357 (Jan. 31, 1991), reopening disallowed (Oct. 19, 1994), Motion
No. 49174, and State v. Allen, 8th Dist. Cuyahoga No. 65806, 1994 Ohio App. LEXIS
4956 (Nov. 3, 1994), reopening disallowed (July 8, 1996), Motion No. 67054, this
court rejected reliance on counsel as showing good cause. Specifically, in State v.
Fortson, 8th Dist. Cuyahoga No. 72229, 1998 Ohio App. LEXIS 6104 (Dec. 17, 1998),
reopening disallowed (Jan. 23, 2001), Motion No. 18195, 2001 Ohio App. LEXIS
245, this court ruled that an attorney’s delay in notification of an appellate decision
does not establish good cause. See also State v. Congress, 8th Dist. Cuyahoga No.
102867, 2018-Ohio-4521; State v. Moss, 8th Dist. Cuyahoga Nos. 62318 and 62322,
1993 Ohio App. LEXIS 2491 (May 13, 1993), reopening disallowed (Jan. 16, 1997),
Motion No. 75838; State v. McClain, 8th Dist. Cuyahoga No. 67785, 1995 Ohio App.
LEXIS 3207 (Aug. 3, 1995), reopening disallowed (Apr. 15, 1997), Motion No. 76811;
and State v. Russell, 8th Dist. Cuyahoga No. 69311, 1996 Ohio App. LEXIS 1879(May 9, 1996), reopening disallowed (June 16, 1997), Motion No. 82351, 1997 Ohio
App. LEXIS 2663.
In addition, this court has consistently held that lack of knowledge or
ignorance of the law does not provide sufficient cause for the untimely filing of an
application for reopening. State v. Klein, 8th Dist. Cuyahoga No. 58389, 1991 Ohio
App. LEXIS 1346 (Apr. 8, 1991), reopening disallowed (Mar. 15, 1994), Motion No.
49260, affirmed, 69 Ohio St.3d 1481, 634 N.E.2d 1027 (1994); State v. Trammell,
8th Dist. Cuyahoga No. 67834, 1995 Ohio App. LEXIS 2962 (July 24, 1995),
reopening disallowed (Apr. 22, 1996), Motion No. 70493; State v. Cummings, 8th
Dist. Cuyahoga No. 69966, 1996 Ohio App. LEXIS 4565 (Oct. 17, 1996), reopening
disallowed (Mar. 26, 1998), Motion No. 92134; and State v. Young, 8th Dist.
Cuyahoga Nos. 66768 and 66769, 1994 Ohio App. LEXIS 4634 (Oct. 13, 1994),
reopening disallowed (Dec. 5, 1995), Motion No. 66164.
II. Effect of Plea of Guilty on App.R. 26(B) Application
In State v. Carano, Cuyahoga C.P. No. CR-21-658104-A, Carano
entered pleas of guilty to the offenses of pandering sexually oriented matter
involving a minor and illegal use of minor in nudity-oriented material or
performance. A plea of guilty waives a defendant’s right to challenge his or her
conviction on all potential issues except for jurisdictional issues and the claim that
ineffective assistance of counsel caused the guilty plea to be less than knowing,
intelligent, and voluntary. Montpelier v. Greeno, 25 Ohio St.3d 170, 495 N.E.2d 581(1986); State v. Vihtelic, 8th Dist. Cuyahoga No. 105381, 2017-Ohio-5818; State v.
Szidik, 8th Dist. Cuyahoga No. 95644, 2011-Ohio-4093; State v. Salter, 8th Dist.
Cuyahoga No. 82488, 2003-Ohio-5652; and State v. May, 8th Dist. Cuyahoga No.
97354, 2012-Ohio-2766, reopening disallowed, 2012-Ohio-5504.
Our independent review of the plea transcript clearly demonstrates that
the trial court meticulously complied with the mandates of Crim.R. 11 and that
Carano entered a knowing, intelligent, and voluntary plea of guilty to the charged
offenses. Because Carano’s plea was knowingly, intelligently, and voluntarily made,
and the claimed errors raised by Carano are not based upon any jurisdictional
defects, the raised proposed assignments of error are waived. By entering a plea of
guilty, Carano waived all appealable errors that might have occurred at trial unless
the errors prevented Carano from entering a knowing, intelligent, and voluntary
guilty plea. State v. Kelley, 57 Ohio St.3d 127, 566 N.E.2d 658 (1991); State v.
Barnett, 73 Ohio App.3d 244, 596 N.E.2d 1101 (2d Dist.1991).
Accordingly, we find that Carano has failed to establish good cause for
the untimely filing of her application for reopening. In addition, Carano waived her
proposed assignments of error based upon the fact that her pleas of guilty to the
charged offenses were knowing, intelligent, and voluntary.
Application denied.
________________________________________
FRANK DANIEL CELEBREZZE, III, PRESIDING JUDGE
EMANUELLA D. GROVES, J., and
MICHAEL JOHN RYAN, J., CONCUR