State v. Tucker

[This opinion has been published in Ohio Official Reports at 

.]




             THE STATE OF OHIO, APPELLEE, v. TUCKER, APPELLANT.
                         [Cite as State v. Tucker, 

.]
Appellate procedure—Application for reopening appeal from judgment and
        conviction based on claim of ineffective assistance of appellate counsel—
        Application denied when applicant fails to establish good cause for failing
        to file within ninety days after journalization of the court of appeals'
        decision affirming the conviction, as required by App.R. 26(B).
       (No. 95-466—Submitted April 18, 1995—Decided August 16, 1995.)
     APPEAL from the Court of Appeals for Lorain County, No. 89CA004533.
                                  __________________
        {¶ 1} According to the court of appeals' opinion, appellant, Homer Tucker,
is currently incarcerated at the Lorain Correctional Institution, apparently following
a felony conviction. The court of appeals affirmed the judgment of conviction on
August 1, 1990. Apparently, in late 1994, he filed an application to reopen his
direct appeal pursuant to App. R. 26(B), which the court of appeals denied on
December 12, 1994, for failure to show good cause for late filing. Appellant now
appeals to this court.
                                  __________________
        Gregory A. White, Lorain County Prosecuting Attorney, and Lisa A. Locke
Graves, Assistant Prosecuting Attorney, for appellee.
        Homer Tucker, pro se.
                                  __________________
        Per Curiam.
        {¶ 2} We affirm the judgment of the court of appeals for the following
reasons. App. R. 26(B) provides that applications to reopen in the court of appeals
must be filed within ninety days of journalization of the appellate judgment sought
to be reopened unless good cause for the delay is shown. Appellant contends that
                                SUPREME COURT OF OHIO




his application was delayed because the prison library did not have a new volume
of Rules of Appellate Procedure immediately after App. R. 26 took effect. He also
argues that he was ineffective acting as his own counsel pro se, on direct appeal.
       {¶ 3} In State v. Reddick (1995), 

, 

, we indicated that procedures to reopen appeals existed before July 1, 1993, the
effective date of App. R. 26(B). Accordingly, we do not find good cause because
a volume of appellate rules was not immediately available in the prison law library.
       {¶ 4} The judgment of the court of appeals is affirmed based on State v.

                                                                 Judgment affirmed.
       Moyer, C.J., Douglas, Wright, Resnick and F.E. Sweeney, JJ., concur.
       Pfeifer, J., dissents.
       Cook, J., not participating.
                                    __________________
       PFEIFER, J., dissenting.
       {¶ 5} The complexities of the law and the burdens of incarceration present
enough barriers to the inmate trying to act as his own counsel without adding the
further difficulty of an inadequate law library.
       {¶ 6} In this case, there was a lengthy delay in providing the Rules of
Appellate Procedure to Tucker's prison law library. Without that new volume, there
is no good reason to believe that Tucker should have known the proper appellate
procedure.
       {¶ 7} It has already been established that the state must provide a law library
in every correctional facility. It follows that the library should be properly and
timely maintained.
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