[This opinion has been published in Ohio Official Reports at
89 Ohio St.3d 204.]
THE STATE OF OHIO, APPELLEE, v. BALLEW, APPELLANT.
[Cite as State v. Ballew, 2000-Ohio-134.]
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)—Court of appeals’ rejection of application affirmed.
(No. 99-2146—Submitted April 10, 2000—Decided June 21, 2000.)
APPEAL from the Court of Appeals for Hamilton County, No. C-920576.
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{¶ 1} Appellant, Tyrone Ballew, was convicted of the aggravated murder of
Donald Hill and sentenced to death. Ballew was also sentenced to prison for
kidnapping and aggravated burglary. The court of appeals affirmed the convictions
and sentence. State v. Ballew (Aug. 2, 1995), Hamilton App. No. C-920576,
unreported, 1995 WL 453044. On direct appeal as of right, we also affirmed. State
v. Ballew (1996),
76 Ohio St.3d 244,
667 N.E.2d 369, certiorari denied, Ballew v.
Ohio (1997),
519 U.S. 1065,
117 S.Ct. 704,
136 L.Ed.2d 625. In October 1996, we
granted a stay of execution recognizing that Ballew had filed a petition for post-conviction relief and intended to file for certiorari. State v. Ballew (1996),
77 Ohio
St.3d 1426,
670 N.E.2d 1361.
{¶ 2} On March 17, 1997, the trial court denied Ballew’s post-conviction
petition, and the court of appeals affirmed the trial court’s judgment. State v.
Ballew (Mar. 6, 1998), Hamilton App. No. C-970313, unreported, 1998 WL 95397.
We then declined to accept the appeal. State v. Ballew (1998),
82 Ohio St.3d 1441,
SUPREME COURT OF OHIO
695 N.E.2d 264. On August 25, 1998, we revoked the stay of execution. State v.
Ballew (1998),
83 Ohio St.3d 1408,
698 N.E.2d 434.
{¶ 3} On June 7, 1999, Ballew filed an App.R. 26(B) application to reopen
his appeal in the court of appeals, asserting that he had received ineffective
assistance of counsel in his original appeal decided in August 1995. In October
1999, the court of appeals rejected that application as untimely, and Ballew now
appeals that decision.
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Michael K. Allen, Hamilton County Prosecuting Attorney, and Ronald W.
Springman, Jr., Assistant Prosecuting Attorney, for appellee.
David J. Graeff, for appellant.
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Per Curiam.
{¶ 4} 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. Ballew’s application to reopen his appeal was, as he concedes,
untimely.
{¶ 5} Ballew asserts, however, that he had “good cause” because the same
counsel, Robert R. Hastings, Jr., represented him in the original appeal to the court
of appeals and this court. Counsel cannot be expected to argue his or her own
ineffectiveness. State v. Lentz (1994), 70 Ohio St.3d 527, 529-530,
639 N.E.2d
784, 785. However, different counsel, Gary W. Crim, began to represent Ballew in
connection with this case in October 1996. Crim also represented Ballew before
the court of appeals and this court in his 1998 appeal of the denial of his petition
for post-conviction relief. See State v. Ballew (Mar. 6, 1998), Hamilton App. No.
C-970313, unreported,
1998 WL 95397. Ballew has not explained or justified the
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January Term, 2000
delay from October 1996 until June 1999 in filing his App.R. 26(B) application.
Thus, the court of appeals correctly rejected Ballew’s application as untimely.
{¶ 6} Accordingly, the judgment of the court of appeals is affirmed.
Judgment affirmed.
MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
LUNDBERG STRATTON, JJ., concur.
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