[Cite as State v. Parker,
2025-Ohio-85.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MAHONING COUNTY
STATE OF OHIO,
Plaintiff-Appellee,
v.
TERRENCE W. PARKER,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 15 MA 0174
Application to Reopen
BEFORE:
Katelyn Dickey, Carol Ann Robb, Mark A. Hanni, Judges.
JUDGMENT:
Denied.
Terrence W. Parker, Defendant-Appellant.
Dated: January 10, 2025
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PER CURIAM.
{¶1} On December 20, 2024, Appellant, Terrence W. Parker, filed a pro se
App.R. 26(B) application to reopen his direct appeal in State v. Parker, 2017-Ohio-4382
(7th Dist.).
{¶2} Appellant was convicted and sentenced to an aggregate prison term of 12
and one-half years for intimidation of a witness, menacing by stalking, disrupting public
services, and two counts of robbery following a jury trial. In his direct appeal, Appellant
asserted: his robbery and intimidation convictions were not supported by sufficient
evidence or were against the manifest weight of the evidence; the trial court committed
plain error for failing to merge several of his convictions, or alternatively, that trial counsel
was ineffective for failing to argue merger; and the court abused its discretion by denying
his motion to sever the menacing by stalking count from the other counts. Id. at ¶ 2. This
court found no merit in Appellant’s arguments and affirmed the trial court’s judgment on
June 16, 2017. Id. at ¶ 2, 77.
App.R. 26(B)(1) and (2)(b) require applications to reopen based on
ineffective assistance of appellate counsel to be filed within ninety days from
journalization of the decision. App.R. 26(B)(1), (2)(b); State v. Gumm, 103
Ohio St.3d 162,
2004-Ohio-4755,
814 N.E.2d 861. The ninety-day
requirement applies to all appellants. State v. Buggs, 7th Dist. Mahoning
Nos. 06 MA 28, 07 MA 187, 2009-Ohio-6628, ¶ 5.
If an application for reopening is not filed within the ninety day time
period, an appellant must make a showing of good cause justifying the delay
in filing. State v. Dew, 7th Dist. Mahoning No. 08 MA 62, 2012-Ohio-434.
State v. Frazier,
2020-Ohio-993, ¶ 5-6 (7th Dist.).
{¶3} As stated, Appellant’s pro se application for reopening was filed on
December 20, 2024. Therefore, his application is clearly untimely as it was not filed within
the 90-day timeframe of this court’s June 16, 2017 decision. Parker, 2017-Ohio-4382
(7th Dist.); App.R. 26(B)(1) and (2)(b).
Case No. 15 MA 0174
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The Ohio Supreme Court has repeatedly held that the 90-day
timeline for filing an application for reopening must be strictly enforced in
order to preserve the finality of judgments and ensure that ineffective
assistance of counsel claims are promptly addressed. State v. Farrow, 115
Ohio St.3d 205,
2007-Ohio-4792,
874 N.E.2d 526, ¶ 7; State v. Winstead,
74 Ohio St.3d 277, 278,
658 N.E.2d 722 (1996) . . .
State v. Cutlip,
2023-Ohio-914, ¶ 3 (7th Dist.).
{¶4} As “good cause” for his late filing, Appellant states he was unaware that his
appellate counsel did not include the complaints and dockets from Mahoning County Area
No. 2 Court, Boardman, Ohio “where this case stems from[.]” See (12/20/2024
Appellant’s Application for Reopening, p. 3); (Exhibit A, 2015 Complaint, Criminal
Damaging, a misdemeanor of the second degree, involving M.G. and a Samsung Galaxy
Notebook 4, Boardman Police Case No. 15-2823); (Exhibit B, 2015 Complaint, Criminal
Damaging, a misdemeanor of the second degree, involving M.G. and a 2012 Jeep Liberty
Tire, Ohio Registration FSR3733, Boardman Police Case No. 15-2823); (Exhibit C,
Docket Sheet, Case No. 2015 CR B 00635 BDM, Closed); (Exhibit D, Docket Sheet, Case
No. 2015 CR B 00636 BDM, Closed).
{¶5} Generally, failing to file an underlying complaint and/or docket on appeal
would not be considered ineffective assistance of counsel as it is not a significant enough
action to typically rise to the level of a “deficient performance” under the legal standard.
See Strickland v. Washington, 466 U.S. 668, 689 (1984). Appellant fails to show that his
appellate counsel’s conduct fell below an objective standard of reasonableness and
resulted in prejudice to him. There is no evidence that had those underlying complaints
and dockets been filed here, the result in the case at bar ultimately involving a nine-count
indictment, which was filed, would have been different. See Parker,
2017-Ohio-4382, ¶
4 (7th Dist.).
{¶6} An “indictment” in criminal law is defined as “[t]he formal written accusation
of a crime, made by a grand jury and presented to a court for prosecution against the
accused person.” Black’s Law Dictionary (12th Ed. 2024). A criminal indictment is the
formal start of the legal process that leads to a criminal trial. The record in Appellant’s
Case No. 15 MA 0174
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direct appeal commenced with the indictment, “the instrument which [began] the formal
criminal process.” See State v. Bowers, 1983 WL 4561, * 3 (7th Dist.).
{¶7} Thus, based on the facts presented and the record before us, we do not find
good cause for Appellant’s untimely filing. Even assuming arguendo Appellant’s pro se
application were timely filed, he fails to meet the standard for reopening this appeal. See
State v. Romeo, 2018-Ohio-2482, ¶ 6 (7th Dist. Oct. 20, 1983).
The test for ineffective assistance of counsel requires a defendant to
prove (1) that counsel’s performance was deficient, and (2) that the deficient
performance prejudiced the defendant. Strickland [, supra, at] 687. Under
this test, a criminal defendant seeking to reopen an appeal must
demonstrate that appellate counsel was deficient for failing to raise the
issue presented in the application for reopening and that there was a
reasonable probability of success had that issue been raised on appeal.
[State v.] Spivey [, 84 Ohio St.3d 24,] 25 [(1998)].
...
Under App.R. 26(B), an applicant must set forth “(o)ne or more
assignments of error or arguments in support of assignments of error that
previously were not considered on the merits in the case by any appellate
court or that were considered on an incomplete record because of appellate
counsel’s deficient representation.” App.R. 26(B)(2)(c).
State v. Hackett, 2019-Ohio-3726, ¶ 6, 9 (7th Dist.).
{¶8} Appellant raises one assignment of error in his application:
THE STATE PRESENTED INFORMATION FROM CASES THAT WERE
CLOSED TO THE GRAND JURY TO OBTAIN A NINE COUNT
SUPERSEDING INDICTMENT, AND TO OBTAIN DEFENDANT’S
CONVICTION.
(12/20/2024 Appellant’s Application for Reopening, p. 5).
Case No. 15 MA 0174
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{¶9} Appellant stresses the jury should not have heard evidence regarding him
breaking M.G.’s phone or slashing her tires. Damage to electronics and tires was
referenced in the Boardman Court complaints, as mentioned above, ultimately leading to
a nine-count indictment in the case at bar and also referenced during the jury trial. See
Parker, 2017-Ohio-4382, ¶ 3-4, 18-21, 24-25, 27 (7th Dist.). Appellant does not advance
a meritorious assignment in order to meet the standard for reopening this appeal over
seven years after this court’s decision. In Appellant’s direct appeal, this court stated:
During the early morning of May 4, 2015, Parker came uninvited to
the apartment of [M.G.], a young woman who had recently ended a
relationship with him. This occurred after she sent him several text
messages asking him to leave her alone. [M.G.] was home with her
roommate and a friend at the time. Among other things, it was alleged that
Parker robbed [M.G.] at knifepoint, slashed a tire on [M.G.’s] vehicle,
threatened her friends with a knife, punched her in the face, and destroyed
her cell phone after she said she would call police. After the incident, it was
alleged that Parker threatened one of her friends who was there that night.
Id. at ¶ 3.
{¶10} As addressed, the allegations ultimately resulted in a nine-count indictment
against Appellant which led to a jury trial, conviction, and prison sentence. Id. at ¶ 4-5,
29-30. Appellant fails to prove that his appellate counsel’s performance was deficient
and that the deficient performance prejudiced him. See Strickland, 466 U.S. 668, 687
(1984). Under this test, Appellant cannot demonstrate that his appellate counsel was
deficient for failing to raise the issue presented in his application for reopening and that
there was a reasonable probability of success had that issue been raised on appeal. See
Spivey,
84 Ohio St.3d 24, 25 (1998).
{¶11} Accordingly, Appellant’s pro se App.R. 26(B) application for reopening is
hereby denied.
Case No. 15 MA 0174
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JUDGE KATELYN DICKEY
JUDGE CAROL ANN ROBB
JUDGE MARK A. HANNI
NOTICE TO COUNSEL
This document constitutes a final judgment entry.
Case No. 15 MA 0174
