2023 OHIO 3466 - State v. Pierce

[Cite as State v. Pierce,

2023-Ohio-3466

.]

                                COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA

STATE OF OHIO,                                     :

                 Plaintiff-Appellee,               :
                                                             No. 111605
                 v.                                :

JOHNNIE A. PIERCE,                                 :

                 Defendant-Appellant.              :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: APPLICATION DENIED
                 RELEASED AND JOURNALIZED: September 27, 2023


                          Cuyahoga County Court of Common Pleas
                       Case Nos. CR-19-642073-A and CR-20-655219-A
                                  Application for Reopening
                                     Motion No. 566347


                                             Appearances:

                 Johnnie A. Pierce, pro se.


KATHLEEN ANN KEOUGH, P.J.:

                   Applicant, Johnnie A. Pierce, seeks to reopen his appeal in State v.

Pierce,

2023-Ohio-528

209 N.E.3d 221

(8th Dist.). Pierce claims that appellate

counsel was ineffective because counsel did not raise several issues that Pierce

argues would have impacted the verdicts in his cases. Pierce’s application for
reopening is untimely without a showing of good cause to excuse the delayed filing.

Therefore, it must be denied.

I. Procedural and Factual Background

Pierce was charged separately and convicted of offenses stemming

from two incidents — a July 2019 bar fight in Cuyahoga C.P. No. CR-19-642073-A,

and a December 2020 traffic stop that resulted in a five-hour standoff between

police and Pierce in Cuyahoga C.P. No. CR-20-655219-A. In these cases, Pierce

received an indefinite sentence of two to three years and a 30-month sentence,

respectively. These sentences were imposed consecutively to each other. Pierce

appealed.

Appellate counsel representing Pierce filed an appellate brief raising

four errors for review:

I. There was insufficient evidence produced at trial to support a
finding of guilt on all counts.

II. The jury lost their way by finding the defendant guilty against the
manifest weight of the evidence.

III. The trial court erred when it imposed the maximum sentence
without support in the record and by ordering the sentences to
be served consecutively.

IV. The sentence of the court imposing an indefinite term of
incarceration pursuant to S.B. 201 (the “Reagan Tokes Act”) is
unconstitutional.

In an opinion journalized on February 23, 2023, this court overruled these assigned

errors and affirmed the convictions. Pierce at ¶ 56.
On July 25, 2023, Pierce filed an application for reopening. This

application, filed 152 days after the journalization of the appellate decision, does not

present statements of proposed assignments of error that appellate counsel should

have raised. It does broadly raise issues that appellate counsel should have

addressed according to Pierce. Pierce mentions claims related to speedy trial and

that the judge assigned to his case was biased against him because of a bar complaint

Pierce filed.1 He further argues that appellate counsel did not review the trial

transcript2 or file an optional reply brief. Finally, he alleges that racial

discrimination played a role in the December 2020 police stop of a car in which

Pierce was a passenger. Pierce argues that appellate counsel should have focused on

perceived civil rights abuses by the police officers that were involved in the

December 2020 stop.

The state did not file a brief in opposition to the application for

reopening.

II. Absence of Good Cause for Delayed Filing

An application for reopening under App.R. 26(B) provides a limited

means of asserting claims of ineffective assistance of appellate counsel. According

to the rule, an application must be filed within 90 days of the date of journalization

of the appellate decision. App.R. 26(B)(1). If the application is not filed within this

1 This judge was replaced by a different judge prior to trial.

2 This claim is contradicted by the appellate brief counsel filed in the appeal.

Throughout the brief, appellant’s counsel extensively cited to the transcript. If appellate
counsel did not review the transcript, there would be no way for counsel to do so.
period, the applicant must show good cause why the application could not have been

timely filed. App.R. 26(B)(2)(b). This is necessary to excuse the delay and reach the

merits of the application. State v. Gumm,

103 Ohio St.3d 162

2004-Ohio-4755

814 N.E.2d 861, ¶ 10

. The failure to establish good cause in an untimely application is

fatal. State v. McCall, 8th Dist. Cuyahoga No. 104479,

2022-Ohio-383, ¶ 5

, citing

State v. Farrow,

115 Ohio St.3d 205

2007-Ohio-4792

874 N.E.2d 526

; State v.

Keith,

119 Ohio St.3d 161

2008-Ohio-3866

892 N.E.2d 912

.

              Pierce’s application for reopening was filed more than 90 days from

the journalization of the appellate decision he seeks to reopen — February 23, 2023

to July 25, 2023. Therefore, the application must establish good cause to excuse the

delay. The application does not provide any justification for the untimely filing or

even mention the time periods set forth in App.R. 26(B)(1) and 26(B)(2)(b). The

failure to timely file the application or provide good cause for the delayed filing

requires this court to deny the application without addressing the merits. Keith at

¶ 8.

              Accordingly, the application to reopen the appeal is denied.




KATHLEEN ANN KEOUGH, PRESIDING JUDGE

EILEEN A. GALLAGHER, J., and
LISA B. FORBES, CONCUR