State v. Davis

[Cite as State v. Davis, 

.]



                            STATE OF OHIO, MAHONING COUNTY

                                   IN THE COURT OF APPEALS

                                        SEVENTH DISTRICT


STATE OF OHIO                                 )    CASE NO. 05 MA 3
                                              )
        PLAINTIFF-APPELLEE                    )
                                              )
VS.                                           )    OPINION AND
                                              )    JOURNAL ENTRY
JACK DAVIS                                    )
                                              )
        DEFENDANT-APPELLANT                   )

CHARACTER OF PROCEEDINGS:                          Appellant’s Motion to Reopen Appeal
                                                   Pursuant to App.R. 26

JUDGMENT:                                          Motion Overruled.

APPEARANCES:

For Plaintiff-Appellee:                            Atty. Paul J. Gains
                                                   Mahoning County Prosecutor
                                                   21 West Boardman Street, 6th Floor
                                                   Youngstown, Ohio 44503

For Defendant-Appellant:                           Jack Davis, Pro se
                                                   #480-713
                                                   Marion Correctional Institution
                                                   P. O. Box 57
                                                   940 Marion-Williamsport Road
                                                   Marion, Ohio 43302


JUDGES:

Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Mary DeGenaro
                                                   Dated: April 22, 2011
[Cite as State v. Davis, 

.]
PER CURIAM.


        {1}      Appellant Jack Davis has filed a third application to reopen his appeal,

citing as his authority App.R. 26(B). For the following reasons, the application is

denied.

        {2}      According to App.R. 26(B)(1), a criminal defendant is entitled to file an

application to reopen an appeal based on a claim of ineffective assistance of

counsel.

        {3}      Appellant was convicted on two counts of gross sexual imposition and

one count of rape in 2004 in the Mahoning County Court of Common Pleas. The

court imposed a thirteen-year prison sentence.          We upheld the conviction and

sentence on March 23, 2007. State v. Davis, 7th Dist. No. 05 MA 3, 

.

        {4}      Approximately seven months later, Appellant filed an application to

reopen his appeal pursuant to App.R. 26(B)(1) on grounds of ineffective assistance

of appellate counsel. We issued an opinion on the application on December 27,

2007. State v. Davis, 7th Dist. No. 05 MA 3, 

. We determined that

Appellant's application for reopening was not timely filed within 90 days as required

by App.R. 26(B)(1). Id. at ¶5. We also held that the application must fail because it

did not contain a sworn statement as to the basis of the claim that appellate counsel’s

representation was deficient, as required by App.R. 26(B)(2)(d). Id. at ¶9. Finally,

we held that the application was barred because Appellant had an earlier opportunity

to raise the issue of ineffective assistance of appellate counsel by filing an appeal

with the Ohio Supreme Court, but had not done so. Id. at ¶10.
                                                                                     -2-

      {5}    Appellant filed a second application to reopen on March 14, 2008. This

second application contained a sworn statement in an attempt to comply with App.R.

26(B)(2)(d), but did not address the remaining two deficiencies that arose from the

first application to reopen. We overruled the application to reopen on September 5,

2008. State v. Davis, 7th Dist. No. 05 MA 3, 

. We held that, as in

the first application for reopening, it was not filed within 90 days of our Opinion

upholding Appellant's conviction and sentence, and that there still was no indication

that Appellant has filed an appeal with the Ohio Supreme Court.              Id. at ¶4.

Furthermore, we held that there is no right to file a second or successive application

to reopen under App.R. 26(B). Id. at ¶5.

      {6}    Appellant has now filed a third application to reopen. Appellant has

attached two affidavits, neither of which actually address any matter pertaining to the

alleged deficient performance of appellate counsel. As in the previous two filings,

Appellant does not address the fact that the application was filed after the time period

allowed by App.R. 26(B)(1), or that Appellant never filed an appeal with the Ohio

Supreme Court. We reiterate our previous holding that “a criminal defendant is not

permitted to file a second [or successive] application for reopening.” Id., citing State

v. Twyford, 

, 

., 

; see also, State v.

Williams, 

, 

, 

; State v. Cooey,

, 

, 

; State v. Richardson (1996), 

, 

.        “[A] prisoner has no right to file successive

applications for reopening. Once ineffective assistance of counsel has been raised
                                                                                  -3-

and adjudicated, res judicata bars its relitigation.” State v. Cheren (1995), 

, 

. See also State v. Perry (1967), 

,

, 226 N.E .2d 104.

      {7}    Appellant’s Application for reopening is hereby denied.


Waite, P.J., concurs.

Donofrio, J., concurs.

DeGenaro, J., concurs.