2024 OHIO 5018 - State v. Kinney

[Cite as State v. Kinney,

2024-Ohio-5018

IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MONROE COUNTY

STATE OF OHIO,

Plaintiff-Appellee,

JASON KINNEY,

Defendant-Appellant.

OPINION AND JUDGMENT ENTRY
Case No. 22 MO 0002

Application for Reopening

BEFORE:
Cheryl L. Waite, Carol Ann Robb, Mark A. Hanni, Judges.

JUDGMENT:
Denied.

Atty. James L. Peters, Monroe County Prosecutor, for Plaintiff-Appellee

Jason Kinney, Pro se, for Defendant-Appellant.

Dated: October 9, 2024
–2–

PER CURIAM.

{¶1} On March 18, 2024, Appellant Jason Kinney filed a pro se application for

reopening of his direct appeal in which we affirmed his conviction for possession of drugs.

A criminal defendant may apply for reopening of a direct appeal based on a claim of

ineffective assistance of appellate counsel. App.R. 26(B)(1). It is insufficient for the

applicant seeking reopening to merely allege that appellate counsel rendered ineffective

assistance for failing to brief certain issues. Rather, the application must demonstrate

that there is a "genuine issue as to whether the applicant was deprived of the effective

assistance of counsel on appeal." App.R. 26(B)(5).

{¶2} Pursuant to App.R. 26(B)(1), Appellant was required to file his application

for reopening within 90 days of the journalization of our judgment entry. “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.” State v. Gumm,

2004-Ohio-4755

, ¶ 7.

       {¶3}   Our Opinion in this matter was filed and journalized on July 13, 2023.

Appellant's application is over five months late. If the application for reopening is not filed

within 90 days, the applicant must make a showing of good cause justifying the delay in

filing. State v. Dew,

2012-Ohio-434, ¶ 6

 (7th Dist.). Appellant's justification for filing the

delayed application is his assertion that he was waiting until his appeal to the Ohio

Supreme Court was resolved before filing the instant application for reopening. He did

file an appeal to the Ohio Supreme Court on October 10, 2023, which was dismissed on

January 31, 2024 due to failure to prosecute. State v. Kinney,

2024-Ohio-302

.




Case No. 22 MO 0002
                                                                                        –3–


      {¶4}   A court of appeals "has jurisdiction to consider an application under App.R.

26(B) even though an appeal of this court's judgment in the direct appeal is pending

before the Supreme Court." State v. Tolliver,

2005-Ohio-2194, ¶ 14

 (10th Dist.). There

was no legal reason for Appellant to delay finding his App.R. 26(B) application until after

some resolution of his appeal to the Ohio Supreme Court. This was simply a choice on

Appellant’s part. Appellant does not contend that he was negligent or mistakenly failed

to timely file his App.R. 26(B) application. He simply wanted to see what the Ohio

Supreme Court was going to do, first. Even after his appeal to the Supreme Court was

dismissed for lack of prosecution, he waited another six weeks to file his application for

reopening.

      {¶5}   Appellant's explanation for delaying the filing of his application for reopening

does not constitute good cause for the delay. Therefore, the application for reopening is

denied.



 JUDGE CHERYL L. WAITE


 JUDGE CAROL ANN ROBB


 JUDGE MARK A. HANNI




Case No. 22 MO 0002
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Case No. 22 MO 0002