State v. Reddick

[This opinion has been published in Ohio Official Reports at 

.]




            THE STATE OF OHIO, APPELLEE, v. REDDICK, APPELLANT.
                      [Cite as State v. Reddick, 

.]
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. 94-2056—Submitted February 7, 1995—Decided April 26,1995.)
       APPEAL from the Court of Appeals for Cuyahoga County, No. 50814.
                                  __________________
        {¶ 1} In 1985, appellant, Ocie Reddick, was convicted of aggravated
murder with gun and mass murder specifications and attempted murder with a gun
specification and sentenced to consecutive terms of imprisonment of twenty years
to life on the aggravated murder conviction, three years' actual incarceration on a
single gun specification, and ten to twenty-five years on the attempted murder
conviction with ten years' actual incarceration. The Court of Appeals for Cuyahoga
County affirmed the convictions and sentences. State v. Reddick (May 7, 1987),
Cuyahoga App. No. 50814, unreported.
        {¶ 2} It is agreed that on August 31, 1993, appellant filed an application to
reopen his appeal in the court of appeals, alleging the ineffective assistance of his
appellate counsel for failure to raise errors apparent on the face of the record. The
court of appeals struck appellant's first application, but granted leave to file an
amended application, which appellant did within the time allotted. The court of
appeals then considered the amended application and denied it for failure to show
good cause why the application was not filed within ninety days after the appellate
judgment sought to be reopened was journalized, as required by App. R. 26 (B) (2)
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(b).1 Appellant appeals the denial to this court, contending that requiring him to
comply with App. R. 26 (B) (2) (b) denies him due process of law.
                                     __________________
         Stephanie Tubbs Jones, Cuyahoga County Prosecuting Attorney, and L.
Christopher Frey, Assistant Prosecuting Attorney, for appellee.
         Paul Mancino, Jr., for appellant.
                                     __________________
         Per Curiam.
         {¶ 3} The court of appeals held that appellant is required to show good
cause why he did not file an application to reopen his appellate judgment, even
though it was journalized over six years before App. R. 26 (B) took effect on July
1, 1993. Appellant argues that to apply the good-cause requirement of App. R. 26
(B) (2) (b) to him is a denial of due process of law under the Fourteenth Amendment
to the Constitution of the United States. We agree with the court of appeals for the
following reasons.
         {¶ 4} App. R. 26 (B) took effect on July 1, 1993. Appellant's application to
reopen his appeal was effectively filed nunc pro tunc on August 31, 1993. It is
therefore subject to the rule.
         {¶ 5} App. R. 26 (B) (2) (b) requires an application filed more than ninety
days after journalization of the appellate judgment sought to be reopened to show
good cause for the untimely filing. The judgment appellant seeks to reopen was

1. App. R.26(B) states in part:
           "(1) A defendant in a criminal case may apply for reopening of the appeal from the
judgment of conviction and sentence, based on a claim of ineffective assistance of appellate counsel.
An application for reopening shall be filed in the court where the appeal was decided within ninety
days from journalization of the appellate judgment unless the applicant shows good cause for filing
at a later time.
           "(2) An application for reopening shall contain all of the following:
           "…
           "(b) a showing of good cause for untimely filing if the application is filed more than ninety
days after journalization of the appellate judgment …."




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                                January Term, 1995




filed on May 7, 1987. Appellant's amended application makes no attempt to
establish good cause. Therefore, facially, it violates App. R. 26 (B) (2) (b).
       {¶ 6} Appellant argues, however, that due process requires App. R. 33(M)
to be invoked. This rule states that amendments to the Rules of Appellate Procedure
that took effect on July 1, 1993 govern proceedings brought after that date, "except
to the extent that their application in a particular action pending when the
amendments take effect would not be feasible or would work injustice, in which
case the former procedure applies." (Emphasis added.) We reject this argument.
Appellant's action was not pending on July 1, 1993.
       {¶ 7} Appellant also argues that the procedure prescribed in State v.
Murnahan (1992), 

, 

, not App. R. 26 (B), should
apply to him. We agree in part. In Murnahan, we held, in paragraph three of the
syllabus, that a person claiming ineffective assistance of appellate counsel could
present his claims under App. R. 26 (now App. R. 26 [A]) and App. R. 14 (B).
Former App. R. 26 provided for a motion for reconsideration before the judgment
was filed with the clerk for journalization or within ten days after announcement of
the court's decision, whichever was earlier. Former App. R. 14 (B) provided for an
enlargement of time to do an act "for good cause shown." Hence, a requirement to
show good cause for failure to file a timely claim of ineffective assistance of
appellate counsel has existed at least since Murnahan was decided and arguably
before, as Murnahan procedure was based on then-extant rules.
       {¶ 8} We hold, therefore, that the good-cause requirement of App. R. 26 (B)
succeeds and incorporates the good-cause requirement of Murnahan and former
App. R. 14 (B). Accordingly, an applicant who seeks to reopen an appellate
judgment journalized before July 1, 1993 may not simply rely on the fact that App.
R. 26 (B) did not exist within the ninety days following jounalization of the
appellate judgment, but must show good cause why he or she did not attempt to
invoke the procedures available under former App. R. 26 and 14 (B). Neither




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Murnahan nor App. R. 26 (B) was intended as an open invitation for persons
sentenced to long periods of incarceration to concoct new theories of ineffective
assistance of appellate counsel in order to have a new round of appeals. Rather,
both were intended to allow the belated presentation of colorable claims that
defendants/appellants were prevented from presenting timely by particular
circumstances. Lack of effort or imagination, and ignorance of the law, are not
such circumstances and do not automatically establish good cause for failure to seek
timely relief.
        {¶ 9} In the present case, appellant made no attempt to show good cause
why he did not file an appropriate motion or application for relief for over six years
after the appellate judgment he now seeks to reopen was journalized. Accordingly,
we hold that he did not comply with App. R. 26 (B) (2) (b), and the court of appeals
correctly denied his application to reopen his appeal.
                                                                 Judgment affirmed.
        MOYER, C.J., DOUGLAS, WRIGHT, RESNICK, F.E. SWEENEY, PFEIFER and
COOK, JJ., concur.
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