[Cite as State v. Williams,
2021-Ohio-4523.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 108333
v. :
MARSHALL WILLIAMS, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: APPLICATION DENIED
RELEASED AND JOURNALIZED: December 20, 2021
Cuyahoga County Court of Common Pleas
Case No. CR-18-634683-A
Application for Reopening
Motion No. 550238
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Mary M. Frey, Assistant Prosecuting
Attorney, for appellee.
Marshall Williams, pro se.
MARY EILEEN KILBANE, J.:
On November 1, 2021, the applicant, Marshall Williams, pursuant to
App.R. 26(B) and State v. Murnahan, 63 Ohio St.3d 60,
584 N.E.2d 1204 (1992),
applied to reopen this court’s judgment in State v. Williams, 8th Dist. Cuyahoga No.
108333,
2020-Ohio-3588, in which this court affirmed his guilty pleas, convictions,
and sentences for drug trafficking and possession. He submits that his appellate
counsel should have argued that Article I, Section 10 of the Ohio Constitution
requires a trial court to inquire into the propriety of multiple representation in any
case in which two or more defendants charged with crimes arising out of the same
matter are represented by the same attorney. The state of Ohio filed its brief in
opposition on December 1, 2021. For the following reasons, this court denies the
application.
In December 2018, the grand jury indicted Mr. Williams and his wife,
Ms. Shawnte Williams (“Ms. Williams”), in an eight-count indictment. Mr. Williams
faced two counts of drug trafficking, three counts of drug possession, and one count
of possession of criminal tools. Ms. Williams faced the same count of possession of
criminal tools and two counts of permitting drug abuse. The same attorney
represented both of them.
In January 2019, both Mr. Williams and Ms. Williams entered into a
joint plea agreement. Mr. Williams pled guilty to one count of drug possession and
an amended count of drug trafficking, in which the weight of the drugs was reduced
from “exceeds one hundred grams” to 27-100 grams. This allowed for a potential
reduction in sentence. The other counts against Mr. Williams were nolled. The
judge sentenced him to nine years in prison. Ms. Williams pled guilty to possession
of criminal tools, and the state nolled the other two counts. The judge sentenced her
to five years of probation.
Mr. Williams’s appellate counsel argued the following: (1) The
sentence was vindictive and not supported by the evidence; (2) The trial court erred
when it did not determine whether Mr. Williams understood the nature of the
offenses, the effects of the plea, and the waiver of certain constitutional rights; (3)
Trial counsel was ineffective for failing to file an indigency affidavit to waive a
mandatory fine and for continuing to represent codefendants despite a clear
conflict; and (4) The trial court erred in failing to inquire about the dual
representation, thus denying him due process and his right to counsel under the
United States Constitution Amendments V, VI, and XIV, and Article I , Section 10 of
the Ohio Constitution.
After this court affirmed, the Supreme Court of Ohio accepted the
case to determine whether a trial court has an affirmative duty to inquire into the
possible conflict of interest created by an attorney’s dual or multiple representation
of codefendants in a criminal case. The court concluded that although making an
inquiry would be the better practice, absent some factor that would alert the court
about a possible conflict of interest, the trial court has no affirmative duty to make
the inquiry. This court further notes that Justice Brunner based her dissent on
Article I, Section 10 of the Ohio Constitution. State v. Williams, Slip Opinion No.
2021-Ohio-3152.
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. The
November 1, 2021 application was filed approximately 16 months after this court’s
July 2, 2020 decision. Thus, it is untimely on its face.
In an effort to show good cause, Mr. Williams argues that his
appellate counsel failed to send him a copy of this court’s decision and that the
COVID pandemic caused him to have inadequate access to the prison’s library and
legal resources. However, these do not establish good cause for untimely filing an
application to reopen. In State v. Lamar, 8th Dist. Cuyahoga No. 49551, 1985 Ohio
App. LEXIS 7284 (Oct. 15, 1985) reopening disallowed (Nov. 15, 1995), Motion No.
263398, this court held that lack of communication with appellate counsel did not
show good cause. Similarly, in State v. White, 8th Dist. Cuyahoga No. 57944,
1991
Ohio App. LEXIS 357 (Jan. 31, 1991), reopening disallowed (Oct. 19, 1994), Motion
No. 249174 and State v. Allen, 8th Dist. Cuyahoga No. 65806,
1994 Ohio App.
LEXIS 4956 (Nov. 3, 1994), reopening disallowed (July 8, 1996), Motion No.
267054, this court rejected reliance on counsel as showing good cause. Specifically,
in State v. Mitchell, 8th Dist. Cuyahoga No. 88977,
2007-Ohio-6190, reopening
disallowed,
2009-Ohio-1874, this court rejected the argument that counsel’s failure
to timely inform the applicant of the outcome of his appeal was good cause.
Furthermore, the courts have 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, 73 Ohio St.3d 152,
1995-Ohio-2,
652 N.E.2d 720; and State
v. Kaszas, 8th Dist. Cuyahoga Nos. 72547 and 72547,
1998 WL 598530 (Sept. 10,
1998), reopening disallowed,
2000 WL 1195676 (Aug. 14, 2000).
The Supreme Court of Ohio 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, held that the 90-day deadline for filing must be strictly
enforced. In those cases, the applicants argued that after the court of appeals
decided their cases, their appellate lawyers continued to represent them, and their
appellate lawyers could not be expected to raise their own incompetence. Although
the Supreme Court agreed with this latter principle, it rejected the argument that
continued representation provided good cause. In both cases, the court ruled that
the applicants could not ignore the 90-day deadline, even if it meant retaining new
counsel or filing the applications themselves. The court then reaffirmed the
principle that lack of effort, lack of imagination, and ignorance of the law do not
establish good cause for failure to seek timely relief under App.R. 26(B). Thus, Mr.
Williams’s misplaced reliance on his appellate counsel and his lack of library access
do not state good cause.
Accordingly, this court denies the application to reopen.
MARY EILEEN KILBANE, JUDGE
EILEEN T. GALLAGHER, P.J., and
ANITA LASTER MAYS, J., CONCUR
