[This opinion has been published in Ohio Official Reports at
86 Ohio St.3d 212.]
THE STATE OF OHIO, APPELLEE, v. DAVIS, APPELLANT.
[Cite as State v. Davis, 1999-Ohio-160.]
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 his application within ninety days after journalization of the court of
appeals’ decision affirming the conviction, as required by App.R. 26(B).
(No. 99-252—Submitted June 22, 1999—Decided August 25, 1999.)
APPEAL from the Court of Appeals for Butler County, Nos. CA84-06-071 and
CA89-09-123.
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{¶ 1} In 1984, appellant, Von Clark Davis, was convicted of the aggravated
murder of Suzette Butler and sentenced to death. The court of appeals affirmed the
conviction and sentence. State v. Davis (May 27, 1986), Butler App. No. CA84-
06-071, unreported, 1986 WL 5989. In State v. Davis (1988),
38 Ohio St.3d 361,
528 N.E.2d 925, we affirmed his conviction, but reversed the death sentence based
on errors occurring after the receipt of mitigating evidence. Timothy R. Evans
represented Davis in that appeal.
{¶ 2} On remand, the three-judge panel again sentenced Davis to death, and
the court of appeals affirmed. State v. Davis (Oct. 29, 1990), Butler App. No.
CA89-09-123, unreported, 1990 WL 165137. We affirmed the death sentence.
State v. Davis (1992),
63 Ohio St.3d 44,
584 N.E.2d 1192. The Ohio Public
Defender represented Davis in that appeal through Assistant Public Defenders
Joann Bour-Stokes and Linda E. Prucha. The United States Supreme Court denied
certiorari. Davis v. Ohio (1992),
506 U.S. 858,
113 S.Ct. 172,
121 L.Ed.2d 119.
{¶ 3} We granted a stay of execution to enable Davis to pursue a petition
SUPREME COURT OF OHIO
for post-conviction relief. State v. Davis (1993), 66 Ohio St.3d 1453,
610 N.E.2d
418. Subsequently, the trial court dismissed Davis’s petition for post-conviction
relief, the court of appeals affirmed that dismissal, State v. Davis (Sept. 30, 1996),
Butler App. No. CA95-07-124, unreported,
1996 WL 551432, and we declined to
accept Davis’s appeal. State v. Davis (1997),
77 Ohio St.3d 1520,
674 N.E.2d 372.
Assistant Public Defenders Linda Prucha and Tracey A. Leonard represented Davis
in that appeal.
{¶ 4} On August 21, 1998, Davis filed applications for reopening with the
court of appeals in cases CA84-06-071 and CA89-09-123 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. John Marshall and
Assistant Public Defender Lori Leon represented Davis in filing these applications,
and Leon has represented Davis since at least March 1997.
{¶ 5} The court of appeals found that Davis’s applications were untimely
under App.R. 26(B), and that Davis “has failed to show good cause as to why his
applications were not filed in a timely manner.”
{¶ 6} Accordingly, the court of appeals denied Davis’s applications to
reopen his appeals. Davis now appeals that decision to this court.
__________________
John F. Holcomb, Butler County Prosecuting Attorney, and Daniel G.
Eichel, First Assistant Prosecuting Attorney, for appellee.
John S. Marshall; David H. Bodiker, Ohio Public Defender, and Lori Leon,
Assistant Public Defender, for appellant.
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Per Curiam.
{¶ 7} 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
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January Term, 1999
of the appellate judgment.’ ” State v. Wickline (1996), 74 Ohio St.3d 369, 371,
658
N.E.2d 1052, 1053.
{¶ 8} However, as the court of appeals noted, “[n]either the [S]upreme
[C]ourt’s decision in State v. Murnahan, … nor App.R. 26(B) [was] available to
allow” the filing of such applications for reopening at the time of the court of
appeals decisions on May 27, 1986 and October 29, 1990.
{¶ 9} Nonetheless, as we have held earlier, “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 or she
did not attempt to invoke the procedures available under former App.R. 26 and
14(B).” State v. Reddick (1995), 72 Ohio St.3d 88, 90,
647 N.E.2d 784, 786.
{¶ 10} In this case, Davis filed his applications to reopen his appeal in
August 1998, five years after App.R. 26(B) became effective on July 1, 1993, six
years after we decided Murnahan, almost eight years after the second court of
appeals decision affirming his death sentence, and twelve years after the court of
appeals first affirmed his death sentence. Thus, no question exists that the
applications were untimely.
{¶ 11} We agree with the court of appeals that Davis has failed to establish
good cause for failing to file timely applications under App.R. 26(B) and
Murnahan. Admittedly, counsel cannot be expected to argue their own
ineffectiveness. State v. Lentz (1994), 70 Ohio St.3d 527, 529-530,
639 N.E.2d
784, 785. However, Davis has gone through several different sets of appellate
lawyers since his initial appeal in 1986. Moreover, Lori Leon has represented him
since at least March 1997, and Davis has not explained his failure to file between
March 1997 and August 1998. Even if we were to find good cause for earlier
failures to file, any such good cause “has long since evaporated. Good cause can
excuse the lack of a filing only while it exists, not for an indefinite period.” State
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SUPREME COURT OF OHIO
v. Fox (1998), 83 Ohio St.3d 514, 516,
700 N.E.2d 1253, 1254. See, also, State v.
Hill (1997),
78 Ohio St.3d 174,
677 N.E.2d 337.
Judgment affirmed.
MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
LUNDBERG STRATTON, JJ., concur.
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