2000 OHIO 14 - State v. Mason

[This opinion has been published in Ohio Official Reports at

90 Ohio St.3d 66

.]




             THE STATE OF OHIO, APPELLEE, v. MASON, APPELLANT.
                       [Cite as State v. Mason,

2000-Ohio-14

.]
Appellate procedure—Application to reopen appeal from judgment of 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. 00-5—Submitted July 6, 2000—Decided September 20, 2000.)
      APPEAL from the Court of Appeals for Marion County, No. C-9-96-70.
                                  __________________
        {¶ 1} Appellant, Maurice Mason, was convicted of the aggravated murder
of Robin Dennis and sentenced to death. Mason was also convicted of rape and
having a weapon under disability and sentenced to prison. The court of appeals
affirmed the convictions and sentence. State v. Mason (Dec. 9, 1996), Marion App.
No. C-9-94-45, unreported,

1996 WL 715480

. On direct appeal as of right, we also
affirmed. State v. Mason (1998),

82 Ohio St.3d 144

694 N.E.2d 932

, certiorari
denied, Mason v. Ohio (1998),

525 U.S. 1057

119 S.Ct. 624

142 L.Ed.2d 562

.
        {¶ 2} In November 1996, the trial court dismissed Mason’s petition for
post-conviction relief from judgment, and the court of appeals affirmed the trial
court’s judgment. State v. Mason (June 6, 1997), Marion App. No. C-9-96-70,
unreported,

1997 WL 317431

. We disallowed that appeal. State v. Mason (1997),

80 Ohio St.3d 1426

685 N.E.2d 238

. The United States District Court has also
denied Mason’s petition for habeas corpus relief from the judgment of conviction
and the sentence. Mason v. Mitchell (N.D.Ohio 2000),

95 F.Supp.2d 744

.
        {¶ 3} On September 13, 1999, Mason filed an App.R. 26(B) application to
reopen his appeal in the court of appeals, asserting that he had received ineffective
                              SUPREME COURT OF OHIO




assistance of counsel in his original appeal decided in December 1996.                In
November 1999, the court of appeals rejected that application, noting, inter alia,
that “the application [was] not filed within ninety days of the December 9, 1996
appellate judgment, as required by App.R. 26(B)(1), and appellant fails to show
good cause for the application being filed untimely.” Mason now appeals that
decision.
                                __________________
        Jim Slagle, Marion County Prosecuting Attorney, for appellee.
        Patricia A. Snyder, for appellant.
                                __________________
        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

. Admittedly, Mason’s application to reopen his appeal was
untimely.
        {¶ 5} Mason asserts, however, that he had “good cause” for late filing
because the same counsel, William F. Kluge and David C. Stebbins, represented
him in the original appeal to the court of appeals, in the original appeal to this court,
in filing a petition for post-conviction relief, and in the appeals from denial of that
relief. Mason argues that 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

.
        {¶ 6} However, different counsel, Patricia A. Snyder, along with Stebbins,
represented Mason before the United States District Court in connection with his
July 15, 1999 petition for habeas corpus relief. Mason has not explained when
Snyder first began to represent him, nor has he explained or justified the delay from




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                                January Term, 2000




the beginning of that representation until the filing of the App.R. 26(B) application
in September 1999. Thus, Mason has not demonstrated “good cause” for the late
filing as required by App.R. 26(B). Thus, the court of appeals correctly rejected
Mason’s application as untimely.
       {¶ 7} The court of appeals also found that the twelve assignments of error
raised by Mason “fail to show there is a genuine issue as to whether appellant was
deprived of the effective assistance of counsel on appeal.” We agree. See
Strickland v. Washington (1984),

466 U.S. 668

104 S.Ct. 2052

80 L.Ed.2d 674

.
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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