1995 OHIO 4 - State v. Spisak

[This opinion has been published in Ohio Official Reports at

73 Ohio St.3d 151

.]




             THE STATE OF OHIO, APPELLEE, V. SPISAK, APPELLANT.
                        [Cite as State v. Spisak,

1995-Ohio-4

.]
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. 95-77—Submitted April 24, 1995—Decided August 16, 1995.)
APPEAL from the Court of Appeals for Cuyahoga County, Nos. 47458 and 47459.
                                  __________________
        {¶ 1} Appellant, Frank G. Spisak, Jr., was convicted of four counts of
aggravated murder, two counts of attempted murder, and one count of aggravated
robbery with various specifications, and sentenced to death. The court of appeals
modified the conviction to three counts of aggravated murder because two of the
four murder convictions were allied offenses of similar import, and otherwise
affirmed the judgment of the trial court. State v. Spisak (July 19, 1984), Cuyahoga
App. Nos. 47458 and 47459, unreported. After a remand, the court of appeals
reaffirmed. State v. Spisak (July 15, 1985), Cuyahoga App. Nos. 47458 and 47459,
unreported. This court affirmed appellant's conviction. State v. Spisak (1988),

36 Ohio St.3d 80

521 N.E.2d 800

. On March 6, 1989, the United States Supreme
Court denied appellant's petition for certiorari. Spisak v. Ohio (1989),

489 U.S. 1071

109 S.Ct. 1354

103 L.Ed.2d 822

.
        {¶ 2} On March 11, 1994, appellant filed an application to reopen under
App. R. 26(B). The court of appeals denied the application, and this appeal
followed.
                                  __________________
                            SUPREME COURT OF OHIO




       Stephanie Tubbs Jones, Cuyahoga County Prosecuting Attorney, and L.
Christopher Frey, Assistant Prosecuting Attorney, for appellee.
       David H. Godiker, Ohio Public Defender, Richard J. Vickers and Kathleen
McGarry, Assistant Public Defenders, for appellant.
                              __________________
       Per Curiam.
       {¶ 3} Under App. R.26(B)(2)(b), an application for reopening requires "a
showing of good cause for untimely filing if the application is filed more than
ninety days after journalization of the appellate judgment." In State v. Reddick
(1995),

72 Ohio St.3d 88, 90

647 N.E.2d 784, 786

, we held that 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 journalization of the appellate judgment, but must show good cause why
he … did not attempt to invoke the procedures available under former App. R.
26 and (14)(B)." Appellant seeks to reopen the appellate judgment of July 19, 1984,
but fails to show good cause for nearly ten years' delay. We agree with the court
of appeals that the application to reopen must be denied as untimely upon its face.
       {¶ 4} The judgment of the court of appeals is therefore affirmed.
                                                               Judgment affirmed.
       MOYER, C.J., DOUGLAS, WRIGHT, RESNICK, F.E. SWEENEY, PFEIFER and
COOK, JJ., concur.
                              __________________




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