State v. May

[Cite as State v. May, 

.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                  Nos. 96362 and 96421


                                      STATE OF OHIO
                                                   PLAINTIFF-APPELLEE

                                                     vs.

                                          GLEN MAY
                                                   DEFENDANT-APPELLANT



                                      JUDGMENT:
                                  APPLICATION DENIED


                              Cuyahoga County Common Pleas Court
                              Case Nos. CR-519564 and CR-524278
                                   Application for Reopening
                                      Motion No. 455119


        RELEASE DATE:               July 2, 2012
FOR APPELLANT

Glen May, Pro Se
No. 571-873
Trumbull Correctional Institution
P.O. Box 901
Leavittsburg, Ohio 44430


ATTORNEYS FOR APPELLEE

William D. Mason, Esq.
Cuyahoga County Prosecutor
By: Brent Kirvel, Esq.
       James M. Price,Esq.
Assistant Prosecuting Attorneys
8th Floor, Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
JAMES J. SWEENEY, J.:

       {¶1} On 

, the applicant, Glen May, pursuant to App.R. 26(B),

applied to reopen this court’s judgment in State v. May, 8th Dist. Nos. 96362 and 96421,

, in which this court ordered that sentencing be modified and remanded

for correction. May claims that his appellate counsel was ineffective for not arguing trial

counsel’s waiver of May’s right to a speedy trial in violation of Ohio law. 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. In the present

case, this court journalized its decision on December 22, 2011, and May did not file his

application for reopening until 

. Therefore, because the period between this

court’s journalization and the filing of the application totals 146 days, the application is

untimely on its face.

       {¶3} States “may erect reasonable procedural requirements for triggering the right

to an adjudication.” Logan v. Zimmerman Brush Co., 

, 

,

 (1982). Ohio has done so by creating a 90-day deadline for the filing of

applications to reopen. State v. Gumm, 

, 

, 

. Consistent enforcement of the rule’s deadline by the appellate courts in Ohio

protects, on the one hand, the state’s legitimate interest in the finality of its judgments and

ensures, on the other hand, that any claims of ineffective assistance of appellate counsel

are promptly examined and resolved. Id. at ¶ 7.

       {¶4} May makes no effort in his application for reopening pursuant to App.R.

26(B) to show good cause for his failure to file his application within the time limit set by

the rule. Instead, May simply argues the ineffectiveness of his appellate counsel without

offering a sound reason why he could not comply with the 90-day fundamental

requirement. May seems to confuse this court’s order and journalization with the trial

court’s order reinstating the case for remand on February 22, 2012 in regards to the

timing requirement.     However, that does not provide good cause. Thus, his application

is untimely and without good cause.

       {¶5} Additionally, May failed to comply with App.R. 26(B)(2)(d), which

requires the applicant to file a sworn statement of error explaining the manner in which

counsel’s deficiency affected the outcome of the case. May’s application contains no

such sworn affidavit and is thus denied.

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




JAMES J. SWEENEY, JUDGE
MARY EILEEN KILBANE, P.J., and
COLLEEN CONWAY COONEY, J., CONCUR