[Cite as State v. Branch,
2022-Ohio-3910.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 110050
v. :
MARCUS BRANCH, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: DENIED
RELEASED AND JOURNALIZED: November 2, 2022
__________________________________
Cuyahoga County Court of Common Pleas
Case No. CR-20-647543-A
Application for Reopening
Motion No. 556256
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney and Daniel T. Van, Assistant Prosecuting
Attorney, for appellee.
Marcus A. Branch, pro se.
EMANUELLA D. GROVES, J.:
On July 6, 2022, the applicant, Marcus Branch, 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. Branch, 8th Dist. Cuyahoga No. 110050,
2022-Ohio-132, in which this court affirmed his conviction and sentence for
attempted felonious assault. Branch now asserts that his appellate counsel was
ineffective for not raising the following issues: (1) his conviction was barred by
double jeopardy, (2) the Adult Parole Authority violated the doctrine-of-separation
of powers by finding him in violation of postrelease control and returning him to
prison, and (3) the state violated his due process rights by allowing him to be sent to
prison for violating postrelease control before trying him on current case. On
September 22, 2022, the state of Ohio filed its brief in opposition. For the following
reasons, this court denies the application to reopen.
In State v. Branch, Cuyahoga C.P. No. CR-18-632204-A, Branch pled
guilty to pandering obscenity. On January 3, 2019, the trial court sentenced him to
11 months in prison and five-years mandatory postrelease control and granted him
128 days of jail-time credit.
After being released, Branch approached his girlfriend to help him
rob someone. The girlfriend said that they fought, but that she did not remember
what happened after that. A couple of days later, the girlfriend was found severely
beaten. The grand jury indicted Branch for felonious assault and aggravated
robbery in State v Branch, Cuyahoga C.P. No. CR-20-647543-A.
Branch claims that after beating his girlfriend, he self-reported this to
the Adult Parole Authority, which returned him to prison for five-and-a-half
months, from September 3, 2019, to February 17, 2020, for violating postrelease
control. Branch attached to his application a certification of incarceration from the
Ohio Department of Rehabilitation and Correction that states he served PRC time
from October 2, 2019, to February 17, 2020. This documentation does not appear
to be in the record prior to Branch attaching it to the instant application to reopen.
In September 2020, the state amended the felonious assault count to
attempted felonious assault, a third-degree felony. Branch pled guilty to that charge,
and the state nolled the aggravated robbery count. In an October 15, 2020 journal
entry, the trial judge sentenced Branch to 36-months in prison. The judge also ruled
that this conviction violated his postrelease control in the pandering obscenity case
and terminated the postrelease control and ordered Branch to serve the remainder
of the postrelease control term as a prison sanction consecutive to the 36-months
term by operation of law.
In the direct appeal, Branch’s counsel argued the following three
assignments of error: (1) the record did not support a maximum sentence, (2) R.C.
2929.141 (new felony committed by person on postrelease control) is
unconstitutional on its face and as applied to Branch, and (3) the trial court abused
its discretion when it did not grant Branch a second psychiatric evaluation. In the
second assignment of error, appellate counsel argued that Ohio’s postrelease control
statute, allowing a person to be sent to prison for a new felony by both the Adult
Parole Authority and the trial judge, as happened to Branch in this case, violated the
Fifth Amendment protection against double jeopardy. Appellate counsel
acknowledged decisions upholding the constitutionality of R.C. 2929.141.1 On
January 20, 2022, this court affirmed in part because the record did not contain any
evidence of Branch serving five-and-a-half months incarceration for violating
postrelease control. State v Branch, 8th Dist., Cuyahoga No. 110050, 2022-Ohio-
132.
On February 1, 2022, Branch filed a pro se motion for reconsideration
arguing that using the attempted felonious assault crime to send him to prison twice
for violating postrelease control and also for committing attempted felonious assault
violates double jeopardy. This court denied his motion for reconsideration on
March 31, 2022. On April 27, 2022, Branch filed pro se motions for en banc
consideration and for delayed reconsideration resurrecting the double jeopardy
argument with the proof of the certification of incarceration. This court denied those
motions on May 6, 2022. Branch filed the App.R. 26(B) application on July 6, 2022.
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
instant case, this court issued its decision on January 20, 2022. Thus, the
application is untimely on its face. In an effort to show good cause, Branch alleges
that he had to get proof of his prior incarceration. However, this court has held that
1 Branch misinterprets State v. Martello, 97 Ohio St.3d 398,
780 N.E.2d 250
(2002). In that case, the Supreme Court of Ohio ruled that if a person on postrelease
control commits a crime, returning that person to prison for violating postrelease control
and prosecuting the person for that new crime does not violate the Double Jeopardy
Clauses. State v. Dunne, 8th Dist. Cuyahoga No. 100460,
2014-Ohio-3323.
experiencing delays in obtaining records related to one’s conviction does not
establish good cause for untimely filing. State v. Nagy, 8th Dist. Cuyahoga No.
105935,
2019-Ohio-2319, and State v. Young, 8th Dist. Cuyahoga No. 109169, 2022-
Ohio-308.
Moreover, 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, any delay Branch experienced in obtaining the records does not state good
cause.
The court further notes that this is the fourth time in this appeal that
the issue of double jeopardy has been raised, once by counsel and three times by
Branch pro se. Because this court has previously considered and rejected Branch’s
double jeopardy argument, res judicata bars this application. State v. Tyler, 71 Ohio
St.3d 398,
643 N.E.2d 1150 (1994).
Accordingly, this court denies the application to reopen.
_________________________
EMANUELLA D. GROVES, JUDGE
LISA B. FORBES, P.J., and
MARY EILEEN KILBANE, J., CONCUR
