1997 OHIO 303 - State v. Wilson

[This opinion has been published in Ohio Official Reports at

80 Ohio St.3d 132

.]




             THE STATE OF OHIO, APPELLEE, v. WILSON, APPELLANT.
                      [Cite as State v. Wilson,

1997-Ohio-303

.]
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 show good cause for failing to
        file his application within ninety days after journalization of the court of
        appeals’ decision affirming the conviction as required by App.R. 26(B).
     (No. 97-465—Submitted August 26, 1997—Decided October 22, 1997.)
     APPEAL from the Court of Appeals for Lorain County, No. 92CA005396.
                                  __________________
        {¶ 1} Appellant, Daniel E. Wilson, was convicted of the aggravated murder
of Carol Lutz and sentenced to death. He was also sentenced to prison terms for
kidnapping and aggravated arson. The court of appeals affirmed the convictions
and sentence. State v. Wilson (Oct. 12, 1994), Lorain App. No. 92CA005396,
unreported,

1994 WL 558568

. On direct appeal as of right, we also affirmed. State
v. Wilson (1996),

74 Ohio St.3d 381

659 N.E.2d 292

, certiorari denied, Wilson v.
Ohio (1996),

519 U.S. ___

117 S.Ct. 129

136 L.Ed.2d 78

. Subsequently, we
issued a stay of execution after Wilson filed a petition for post-conviction relief.
State v. Wilson (1996),

77 Ohio St.3d 1425

670 N.E.2d 1361

.
        {¶ 2} On December 12, 1996, Wilson filed an application for reopening
with the court of appeals pursuant to App.R. 26(B) and State v. Murnahan (1992),

63 Ohio St.3d 60

584 N.E.2d 1204

, alleging ineffective assistance of appellate
counsel before that court. The court of appeals noted that Wilson’s application was
untimely under App.R. 26(B) for not having been filed within ninety days from the
journalization of the decision of the court of appeals.
                             SUPREME COURT OF OHIO




         {¶ 3} Before the court of appeals, Wilson’s attorney claimed that he was
“incapacitated” from January 10, 1995 to September 20, 1996, and filed this motion
as soon as his “incapacity” ended. As the court of appeals noted, however,
counsel’s claim of “incapacity” consisted of the following: “(1) he did not become
involved in the case until October 23, 1995; (2) he did not gain access to appellant’s
records until February 5, 1996; and (3) … he had to prepare a petition for post-conviction relief on appellant’s behalf, prepare a petition for post-conviction relief
for another criminal defendant, and prepare a brief in another … appeal.”
         {¶ 4} Thus, counsel essentially argued before the court of appeals and now
argues here that he did not file the motion for reopening earlier because he was busy
and had other work to do. The court of appeals found that counsel’s “stated
‘incapacity’ was not sufficient cause to justify [Wilson’s] failure to file his
application in a timely manner.” Accordingly, the court of appeals denied Wilson’s
untimely application to reopen his appeal. Wilson now appeals that decision to this
court.
                               __________________
         Gregory White, Lorain County Prosecuting Attorney, and Jonathan E.
Rosenbaum, Assistant Prosecuting Attorney, for appellee.
         David H. Bodiker, Ohio Public Defender, and A. Ruben Lopez, Assistant
Public Defender, for appellant.
                               __________________
         Per Curiam.
         {¶ 5} We affirm the judgment of the court of appeals. “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.’ ” State v. Wickline (1996),

74 Ohio St.3d 369, 371

658 N.E.2d 1052, 1053

. We agree with the court of appeals that Wilson has not
established good cause for his failure to file the application for reopening by



                                          2
                               January Term, 1997




January 10, 1995, which was ninety days from the journalization of the decision by
the court of appeals. We further note that Wilson’s current attorney, who did not
represent him on his direct appeal, admits that he has been involved in his case
since October 23, 1995, but still does not adequately explain his failure to file a
timely application for reopening, even from the date of his involvement. That
counsel was “busy” with other cases does not constitute good cause for the delayed
filing. See State v. Williams (1996),

74 Ohio St.3d 454

659 N.E.2d 1253

.
                                                               Judgment affirmed.
       MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
LUNDBERG STRATTON, JJ., concur.
                              __________________




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