State v. Simmons , 2013 Ohio 1013 ( 2013 )

[Cite as State v. Simmons, 2013-Ohio-1013.]
STATE OF OHIO, JEFFERSON COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, )
) CASE NO. 07 JE 22
PLAINTIFF-APPELLEE, )
)
- VS - ) OPINION
) AND
MICHAEL SIMMONS, ) JUDGMENT ENTRY
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Application for Reopening,
Criminal Appeal from Common Pleas
Court, Case No. 05 CR 130.
JUDGMENT: Application Denied.
APPEARANCES:
For Plaintiff-Appellee: Attorney Jane Keenan
Prosecuting Attorney
Jefferson County Justice Center
16001 State Route 7
Steubenville, OH 43952
For Defendant-Appellant: Michael Simmons, Pro-se
P.O. Box 120-491890 W.C.I.
Lebanon, OH 45036
JUDGES:
Hon. Mary DeGenaro
Hon. Gene Donofrio
Hon. Cheryl L. Waite
Dated: March 13, 2013
[Cite as State v. Simmons, 2013-Ohio-1013.]
PER CURIAM:
{¶1} Appellant Michael Simmons, acting pro se, has filed an application to
reopen his appeal based on a claim of ineffective assistance of appellate counsel
pursuant to App. R. 26(B). Because Simmons has failed to demonstrate good cause for
the untimeliness of the application, it is denied.
{¶2} Following a jury trial, Simmons was convicted of one count of corrupting
another with drugs with a school specification; one count of trafficking in drugs with a
juvenile specification; one count of tampering with evidence; and one count of possession
of drugs. Simmons was originally sentenced on January 12, 2006 to 8 years; 3 years; 3
years; and 12 months respectively on each of these counts. The sentences were ordered
to be served consecutively, for a total of 15 years.
{¶3} Simmons filed a direct appeal with this court asserting eleven assignments
of error that challenged both his convictions and sentence. In State v. Simmons, 7th Dist.
No. 06 JE 4, 2007-Ohio-1570 (Simmons I), this court upheld his convictions, but vacated
Simmons’ sentence and remanded the matter for resentencing under State v. Foster, 109
Ohio St.3d 1, 845 N.E.2d 470, 2006-Ohio-856. A resentencing hearing was conducted
and the original sentence was reimposed.
{¶4} Simmons appealed from the resentencing, alleging due process and ex post
facto violations, which this court found meritless, upholding the sentence. State v.
Simmons, 7th Dist. No. 07 JE 22, 2008-Ohio-3337 (Simmons II). Simmons appealed that
judgment to the Ohio Supreme Court, which did not accept the case for review. State v.
Simmons, 120 Ohio St.3d 1417, 2008-Ohio-6166, 897 N.E.2d 653 (Table).
{¶5} Subsequently, on December 11, 2009, Simmons filed a motion in the trial
court to vacate his sentence. He argued that the trial court improperly imposed post-
release control and requested a new sentencing hearing, which the trial court granted. At
this second resentencing, the trial court again imposed the same 15-year aggregate
sentence. This time, the trial court correctly imposed post-release control. Simmons
appealed from that judgment and this court affirmed. State v. Simmons, 7th Dist. No. 10-
JE-4, 2011-Ohio-2625 (Simmons III).
-2-
{¶6} On December 27, 2012, Simmons filed an application for reopening, listing
appellate court Case Numbers 06 JE 4 and 07 JE 22 (Simmons I and Simmons II). The
State has not filed a response. The following will address the application as it pertains to
Case Number 07 JE 22 (Simmons II) only.
{¶7} App.R. 26(B) allows a criminal defendant to challenge the constitutional
effectiveness of appellate counsel by reopening the appeal. However, the rule provides
that an application for reopening must be filed “within ninety days from journalization of
the appellate judgment unless the applicant shows good cause for filing at a later time.”
Simmons has failed to meet this deadline. Our opinion in his appeal from the 2007
resentencing (Case Number 07 JE 22) was journalized on June 24, 2008. Simmons filed
his application for reopening on December 27, 2012, well over four years after the
deadline expired. Thus, we can only review the merits of Simmons’ application if he can
establish good cause for his untimely filing.
{¶8} Simmons contends that he failed to file the application sooner due to the
apparent misspelling of a case name within the transcription of the 2007 resentencing
hearing. The case name appears to have been cited by defense counsel during the
hearing, and was spelled “State v. Pelfree,” in the transcript.
{¶9} Simmons quotes the following passage, which purportedly comes from the
2007 resentencing transcript, though he has failed to furnish that transcript for this court
to review with the application pursuant to App.R. 26(B)(2)(e).
MR. VUKELIC: He also asked that I present the arguments under the case
of State v. Pelfree that corrupting another with drugs which this court and
jury found him guilty of should have been sentenced under guidelines of a
felony of the fourth degree instead of a felony of the first degree due to the
fact that the jury was not able to make a determination or findings regarding
that type of drug that was involved in the offense involving the possession
and the tampering charge. (Application for Reopening, p. 1.)
{¶10} Simmons asserts that he was unable to find the “Pelfree” case through his
research while incarcerated until the prison obtained access to an electronic research and
-3-
he discovered the accurate spelling was “Pelfrey.” (State v. Pelfrey, 112 Ohio St.3d 422,
2007-Ohio-256, 860 N.E.2d 735.) He claims that had he known of the actual case name
sooner, he would have used a legal proposition therein as the basis of a timely application
for reopening, namely that “[t]rial counsel was ineffective for not ensuring the correctness
of the jury verdict form prior to the conclusion of the jury deliberations.” (Application for
Reopening, p. 2.)
{¶11} This does not constitute good cause for the untimeliness of the present
application. Even assuming the above passage is an accurate quotation from the 2007
resentencing hearing, it demonstrates that Simmons was aware of the legal proposition
cited by counsel, and (although it is not entirely clear from the excerpt) perhaps even
suggested that counsel raise the issue during the resentencing hearing. In any event, the
apparent misspelling in the case name did not prohibit Simmons from filing a timely
application for reopening. The fact that Simmons was incarcerated or untrained in the
law does not establish good cause either. See State v. Dew, 7th Dist. No. 08 MA 62,
2012-Ohio-434, ¶8; State v. Ramirez, 8th Dist. No. 78364, 2005-Ohio-378, ¶4.
{¶12} Further, an application to reopen this appeal, Case Number 07 JE 22, would
have to raise an issue concerning ineffective assistance of appellate counsel during the
appeal of Simmons’ 2007 resentencing. The jury verdict form issue raised by Simmons
has no bearing on that proceeding.
{¶13} Because Simmons has failed to establish good cause for the delay in filing
for reopening his appeal, his application for reopening is denied.
DeGenaro, P.J.
Donofrio, J.
Waite, J.