State v. Kinder

[Cite as State v. Kinder, 

.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 94722




                                       STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                    JOSEPH F. KINDER
                                                    DEFENDANT-APPELLANT




                                      JUDGMENT:
                                  APPLICATION DENIED


                               Cuyahoga County Common Pleas Court
                                      Case No. CR-524151
                                    Application for Reopening
                                       Motion No. 448235


RELEASE DATE: March 26, 2012
Joseph Kinder
Inmate No. 581-348
Grafton Correctional Inst.
2500 South Avon Belden Road
Grafton, OH 44044

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

By: Diane Smilanick
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
KENNETH A. ROCCO, J.:

       {¶1} On October 4, 2011, the applicant, Joseph Kinder, pursuant to App. R. 26(B)

and State v Murnahan, 

, 

, applied to reopen this court’s

judgment in State v Kinder, 8th Dist. No. 94722, 

, which affirmed his

convictions for felonious assault and promoting prostitution.          He asserts that his

appellate counsel should have argued that his trial counsel was ineffective for failing to

present and preserve a constitutional argument.    On October 21, 2011, the state of Ohio

filed a brief in opposition. For the following reasons, this court denies the application.

       {¶2} App.R. 26(B)(1) and (2)(b) require applications claiming ineffective

assistance of appellate counsel to be filed within 90 days from journalization of the

decision unless the applicant shows good cause for filing at a later time. Kinder’s

October application was filed approximately 200 days after this court journalized its

decision on March 10, 2011. Thus, the application is untimely on its face.
          {¶3} In an effort to show good cause, Kinder states that another inmate assaulted

him on March 14, 2011, which resulted in injury and time spent in segregation,

preventing him from using the library. He also asserts that he had limited access to the

library and legal resources because of lockdowns, gang activity, vacation of the law

librarian, and only three computer terminals at which to do research.    He also states that

he was not aware of App. R. 26(B) until he was transferred to Grafton prison in July

2011.      Kinder supports his arguments with an affidavit but he did not submit any

supporting documents such as prison hospital records to establish his claims for physical

injury.

          {¶4} In State v. Gilbert, 8th Dist. 90856, 

, reopening disallowed,

, this court ruled an argument of medical incapacity must be supported

with records to substantiate the medical condition; a self-serving affidavit is insufficient.

Thus, to the extent that Kinder seeks to show good cause by reason of physical injury or

medical condition, his argument is unpersuasive, because it is unsupported.
       {¶5} Kinder also argues that his lack of legal knowledge prevented him from

timely filing his application. However, the courts have consistently ruled that lack of

knowledge or ignorance of the law does not provide sufficient cause for untimely filing.

State v. Klein, 8th Dist. No. 58389, 

 (Apr. 8, 1991), reopening

disallowed, Motion No. 249260 (Mar. 15, 1994), aff’d, 

, 

 (1994); State v. Trammell, 8th Dist. No. 67834, 

 (July 24, 1995),

reopening disallowed, Motion No. 270493 (Apr. 22, 1996); State v. Cummings, 8th Dist.

No. 69966, 

 (Oct. 17, 1996), reopening disallowed, Motion No. 292134

(Mar. 26, 1998); and State v. Young, 8th Dist. Nos. 66768 and 66769, 

(Oct. 13, 1994), reopening disallowed, Motion No. 266164 (Dec. 5, 1995). Ignorance of

the law is no excuse.
       {¶6} Kinder also complains that he did not have ready access to the prison law

library. However, the courts have also repeatedly rejected the claim that limited access

to legal materials states good cause for untimely filing. Prison riots, lockdowns, and

other library limitations have been rejected as constituting good cause. State v. Tucker,

, 

, 

; State v. Kaszas, 8th Dist. Nos. 72547

and 72547, 

 (Sept. 10, 1998), reopening disallowed, 

(Aug. 14, 2000); State v. Hickman, Cuyahoga App. No. 72341, 

 (Apr.

30, 1998) reopening disallowed, 

 (Dec. 13, 2000); and State v. Turner,

Cuyahoga App. No. 55960, 

 (Nov. 16, 1989), reopening disallowed,

 (Aug. 20, 2001). Untimeliness alone is sufficient to dismiss the

application.

       {¶7} Accordingly, this court denies the application to reopen.




KENNETH A. ROCCO, JUDGE

PATRICIA A. BLACKMAN, P.J., and
COLLEEN CONWAY COONEY, J., CONCUR