Opinion
No. 108019
10-20-2020
STATE OF OHIO, Plaintiff-Appellee, v. THOMAS TEWELL, Defendant-Appellant.
Appearances: Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Daniel T. Van, Assistant Prosecuting Attorney, for appellee. David L. Doughten, for appellant.
JOURNAL ENTRY AND OPINION JUDGMENT: APPLICATION DENIED Cuyahoga County Court of Common Pleas
Case No. CR-18-630713-A
Application for Reopening
Motion No. 540004
Appearances:
Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Daniel T. Van, Assistant Prosecuting Attorney, for appellee. David L. Doughten, for appellant. RAYMOND C. HEADEN, J.:
{¶ 1} Thomas Tewell has filed an application for reopening pursuant to App.R. 26(B). Tewell is attempting to reopen the appellate judgment rendered in State v. Tewell, 8th Dist. Cuyahoga No. 108019, 2019-Ohio-3770, that affirmed his conviction for the offense of unauthorized use of property (R.C. 2913.04(C)). We decline to reopen Tewell's appeal.
{¶ 2} App.R. 26(B)(2)(b) requires that Tewell establish "a showing of good cause for untimely filing if the application is filed more than 90 days after journalization of the appellate judgment" that is subject to reopening. The Supreme Court of Ohio, with regard to the 90-day deadline provided by App.R. 26(B)(2)(b), has established that:
[w]e now reject [the applicant's] claims that those excuses gave good cause to miss the 90-day deadline in App.R. 26(B). * * * 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.(Emphasis added.) State v. Gumm, 103 Ohio St.3d 162, 2004-Ohio-4755, 814 N.E.2d 861, ¶ 7. See also State v. Lamar, 102 Ohio St.3d 467, 2004-Ohio-3976, 812 N.E.2d 970; State v. Cooey, 73 Ohio St.3d 411, 653 N.E.2d 252 (1995); State v. Reddick, 72 Ohio St.3d 88, 647 N.E.2d 784 (1995).
Ohio and other states "may erect reasonable procedural requirements for triggering the right to an adjudication," Logan v. Zimmerman Brush Co. (1982), 455 U.S. 422, 437, 102 S.Ct. 1148, 71 L.Ed.2d 265, and that is what Ohio has done by creating a 90-day deadline for the filing of applications to reopen. * * * The 90-day requirement in the rule is "applicable to all appellants," State v. Winstead (1996), 74 Ohio St.3d 277, 278, 658 N.E.2d 722, and [the applicant] offers no sound reason why he — unlike so many other Ohio criminal defendants — could not comply with that fundamental aspect of the rule.
{¶ 3} Herein, Tewell is attempting to reopen the appellate judgment that was journalized on September 19, 2019. The application for reopening was not filed until July 17, 2020, more than 90 days after journalization of the appellate judgment in Tewell, supra. Tewell claims that: 1) he did not timely receive notice from appellate counsel with regard to the ability to file an App.R. 26(B) application for reopening; 2) detrimental reliance upon the legal advice provided by appellate counsel; 3) ignorance of the law; and 4) manifest injustice. Tewell has failed to demonstrate any viable showing of good cause for the untimely filing of his application for reopening.
{¶ 4} The arguments raised by Tewell, in support of his good cause argument, do not establish a valid basis for the untimely filing of his App.R. 26(B) application for reopening. In State v. Lamar, 8th Dist. Cuyahoga No. 49551, 1985 Ohio App. LEXIS 7284 (Oct. 3, 1985), reopening disallowed (Nov. 15, 1995), Motion No. 63398, this court held that lack of communication with appellate counsel did not establish good cause. See also State v. Jarrells, 8th Dist. Cuyahoga No. 99329, 2014-4564. 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. 49174 and State v. Allen, 8th Dist. Cuyahoga No. 65806, 1994 Ohio App. LEXIS 4956 (Nov. 3, 1994), reopening disallowed (July 8, 1996), Motion No. 67054, this court rejected reliance on counsel as establishing good cause. Specifically, in State v. Fortson, 8th Dist. Cuyahoga No. 72229, 1998 Ohio App. LEXIS 6104 (Dec. 17, 1998), reopening disallowed (Jan. 23, 2001), Motion No. 18195, 2001 Ohio App. LEXIS 245, this court ruled that an attorney's delay in notification of an appellate decision does not establish good cause. See also State v. Congress, 8th Dist. Cuyahoga No. 102867, 2018-Ohio-4521; State v. Moss, 8th Dist. Cuyahoga Nos. 62318 and 62322, 1993 Ohio App. LEXIS 2491 (May 13, 1993), reopening disallowed (Jan. 16, 1997), Motion No. 75838; State v. McClain, 8th Dist. Cuyahoga No. 67785, 1995 Ohio App. LEXIS 3207 (Aug. 3, 1995), reopening disallowed (Apr. 15, 1997), Motion No. 76811; and State v. Russell, 8th Dist. Cuyahoga No. 69311, 1996 Ohio App. LEXIS 1879 (May 9, 1996), reopening disallowed (June 16, 1997), Motion No. 82351, 1997 Ohio App. LEXIS 2663.
{¶ 5} In addition, this court has consistently held that lack of knowledge or ignorance of the law does not provide sufficient cause for the untimely filing of an application for reopening. State v. Klein, 8th Dist. Cuyahoga No. 58389, 1991 Ohio App. LEXIS 1346 (Apr. 8, 1991), reopening disallowed (Mar. 15, 1994), Motion No. 49260, aff'd, 69 Ohio St.3d 1481, 634 N.E.2d 1027 (1994); State v. Trammell, 8th Dist. Cuyahoga No. 67834, 1995 Ohio App. LEXIS 2962 (July 24, 1995), reopening disallowed (Apr. 22, 1996), Motion No. 70493; State v. Cummings, 8th Dist. Cuyahoga No. 69966, 1996 Ohio App. LEXIS 4565 (Oct. 17, 1996), reopening disallowed (Mar. 26, 1998), Motion No. 92134; and State v. Young, 8th Dist. Cuyahoga Nos. 66768 and 66769, 1994 Ohio App. LEXIS 4634 (Oct. 13, 1994), reopening disallowed (Dec. 5, 1995), Motion No. 66164.
{¶ 6} This court has also repeatedly rejected the claim that limited access to legal materials states good cause for untimely filing. State v. Kaszas, 8th Dist. Cuyahoga Nos. 72547 and 72547, 1998 Ohio App. LEXIS 4227 (Sept. 21, 1988), reopening disallowed (Aug. 14, 2000), Motion No. 16752, 2000 Ohio App. LEXIS 3755; State v. Hickman, 8th Dist. Cuyahoga No. 72341, 1998 Ohio App. LEXIS 1893 (Apr. 30, 1998), reopening disallowed (Dec. 13, 2000), Motion No. 20830; State v. Turner, 8th Dist. Cuyahoga No. 55960 (Nov. 16, 1989), reopening disallowed (Aug. 20, 2001), Motion No. 23221; and State v. Stearns, 8th Dist. Cuyahoga No. 76513, 2000 Ohio App. LEXIS 3161 (July 24, 2000), reopening disallowed (Feb. 14, 2002), Motion No. 27761, 2002 Ohio App. LEXIS 770.
{¶ 7} Tewell's claim of manifest injustice, as based on three proposed assignments of error, also fails. A review of the three proposed assignments of error fails to disclose the existence of any error because: 1) the record fails to disclose the admission of any prejudicial irrelevant testimony during the course of trial; 2) R.C. 2913.04(C), which deals with the unauthorized use of a computer, cable or telecommunications property, is not unconstitutionally vague — State v. Hayes, 4th Dist. Adams No. 17CA1056, 2019-Ohio-257; State v. Garn, 5th Dist. Richland No. 16CA26, 2017-Ohio-2969; State v. Johnson, 8th Dist. Cuyahoga No. 59190, 1992 Ohio App. LEXIS 699 (Feb. 13, 1992); and 3) a review of the trial court record fails to disclose ineffective assistance of trial counsel.
{¶ 8} Finally, the Supreme Court of Ohio has established that good cause cannot excuse the lack of timely filing for an indefinite period of time:
Good cause can excuse the lack of a filing only while it exists, not for an indefinite period. See State v. Hill (1997), 78 Ohio St.3d 174, 677 N.E.2d 337; State v. Carter (1994), 70 Ohio St.3d 642, 640 N.E.2d 811. We specifically reject Fox's claim that "once an applicant has established good cause for filing more than ninety days after journalization * * *, it does not matter when the application is filed.State v. Davis, 86 Ohio St.3d 212, 214, 1999-Ohio-160, 714 N.E.2d 384.
{¶ 9} Herein, the appellate judgment subject to reopening was journalized on September 19, 2019. More than ten months has passed since we rendered our appellate opinion. Thus, we find that even if good cause was established, the time for filing an application for reopening has long passed. State v. Williams, 8th Dist. Cuyahoga No. 106266, 2019-Ohio-4780; State v. Churn, 8th Dist. Cuyahoga No. 105782, 2019-Ohio-4780; State v. Marshall, 8th Dist. Cuyahoga No. 87334, 2019-Ohio-1114.
{¶ 10} Accordingly, the application for reopening is denied. /s/_________
RAYMOND C. HEADEN, JUDGE LARRY A. JONES, SR., P.J., and
MICHELLE J. SHEEHAN, J., CONCUR