[Cite as State v. Jarrett,
2014-Ohio-488.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98759
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
KENNETH L. JARRETT
DEFENDANT-APPELLANT
JUDGMENT:
APPLICATION DENIED
Cuyahoga County Court of Common Pleas
Case Nos. CR-554504, CR-558789, CR-559105, CR-559365,
CR-559433, CR-559935, CR-562138, and CR-562549
Application for Reopening
Motion No. 469750
RELEASE DATE: February 11, 2014
FOR APPELLANT
Kenneth L. Jarrett, pro se
Inmate No. 630-619
Noble Correctional Institution
15708 McConnelsville Road
Caldwell, OH 43724
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Mary McGrath
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 8th Floor
Cleveland, OH 44113
MELODY J. STEWART, J.:
{¶1} On November 8, 2013, Kenneth Jarrett, filed a “Motion for leave to file
delayed appeal 26(B).”1 In this motion, Jarrett asks that this court order his former
lawyer to provide him with the transcripts so he “can better perfect [his] claims” and that
this court delay the time for filing his App.R. 26(B) application to reopen until he has
received the transcript. Jarrett also submitted an affidavit in which he claims that his
appellate counsel was ineffective for not arguing the following: (1) the state breached
the plea agreement by not remaining silent during the sentencing as agreed, (2) the plea
agreement was voidable in part regarding one claim of restitution, and (3) some of the
counts should have merged as allied offenses.2 Thus, it is uncertain whether Jarrett is
trying to reopen this court’s judgment in State v. Jarrett, 8th Dist. Cuyahoga No. 98759,
2013-Ohio-1663, or trying to toll the time for filing his App.R. 26(B) application. On
November 26, 2013, the state of Ohio filed a memorandum in opposition, and Jarrett filed
a reply on December 16, 2013. For the following reasons, this court denies the motion
and/or the application to reopen.
This filing concerns only App.R. 26(B), an application to reopen. It is not a request for a
1
delayed appeal pursuant to App.R. 5.
Jarrett pled guilty in eight different cases to charges of fraud, forgery, identity fraud, identity
2
theft, grand theft, attempted grand theft, and possession of criminal tools. Appellate counsel argued
that the trial court erred in imposing consecutive sentences because the total financial harm to the
victims — $22,590 — did not justify consecutive sentences. This court affirmed reasoning that
Jarrett’s conduct, including 16 prior felony convictions and the harm inflicted on the victims, was
sufficiently serious to warrant consecutive sentences.
{¶2} To the extent that Jarrett is trying to toll the time for filing an application to
reopen until he gets the transcripts, such an effort is ineffective. In State v. Allen, 8th
Dist. Cuyahoga No. 92482, 2010-Ohio-9, reopening disallowed,
2011-Ohio-588, Allen
endeavored to toll the time for filing by submitting a “Notice of intent to file Criminal
Rule 26(B)” and complaining that he had not yet been able to obtain his transcripts.
This court rejected his attempt; the rules do not allow such a “notice” and the Supreme
Court of Ohio has insisted on strictly enforcing the 90-day deadline. Furthermore,
Jarrett has already tried to toll the time for filing an application to reopen, and this court
denied his motion for extension of time on July 23, 2013 (Motion No. 466799).
{¶3} To the extent that Jarrett has submitted an App.R. 26(B) application to
reopen, it is untimely. 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. This
court decided Jarrett’s case on April 25, 2013. Thus, his November 8, 2013 application
is untimely on its face. In an effort to show good cause or “restart” the clock, Jarrett
states that he needs the transcripts to “better perfect” his claims, that his attorney refused
to send him the transcripts, and that this court’s administrator has not helped him to get
his attorney to send him the transcript, despite Jarrett’s requests. However, lack of a
transcript does not state good cause for an untimely filing. State v. Lawson, 8th Dist.
Cuyahoga No. 84402, 2005-Ohio-880, reopening disallowed,
2006-Ohio-3839; and State
v. Henderson, 8th Dist. Cuyahoga No. 95655,
2012-Ohio-1040, reopening disallowed,
2013-Ohio-2524. Nor does the lack of help from court employees state good cause.
Newburgh Hts. v. Chauncey, 8th Dist. Cuyahoga No. 75465,
2000 Ohio App. LEXIS
6261 (Oct. 20, 2000).
{¶4} In his reply, Jarrett admits that these excuses do not state good cause for
untimely filing. He then argues that Ohio’s enforcement of the 90-day limitations period
is so strict that good cause does not exist and that such strictness violates due process.
The Supreme Court of Ohio implicitly addressed this argument in State v. LaMar, 102
Ohio St.3d 467,
2004-Ohio-3976,
812 N.E.2d 970, and State v. Gumm,
103 Ohio St.3d
162,
2004-Ohio-4755,
814 N.E.2d 861. Citing Logan v. Zimmerman Brush Co., 455
U.S 422, 437,
102 S.Ct. 1148,
71 L.Ed.2d 265, the court noted that states “may erect
reasonable requirements for triggering the right to an adjudication.” Ohio did that “by
creating a 90-day deadline for the filing of applications to reopen.” LaMar at ¶ 7.
“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.” Gumm at ¶ 7. Strict enforcement of the rule is appropriate
for what is essentially a “second crack at the apple.”
{¶5} Jarrett admits that he knew he wanted to raise additional arguments from at
least April 25, 2013. Thus, he should have filed, if necessary, a pro se application
within the 90 days; “[w]hat he could not do was ignore the rule’s filing deadline.”
LaMar at ¶ 7. In conclusion, Jarrett “offers no sound reason why he — unlike so many
other Ohio criminal defendants — could not comply with that fundamental aspect of the
rule.” Id. at ¶ 9.
{¶6} Accordingly, this court denies Jarrett’s motion and/or application to reopen.
MELODY J. STEWART, JUDGE
MARY J. BOYLE, A.J., and
MARY EILEEN KILBANE, J., CONCUR
