State v. Fears, (Ohio 2008)

Summary

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Murnahan; untimely; good cause.

Summary

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Murnahan; untimely; good cause.

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[Cite as State v. Fears, 2008-Ohio-5342.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION

No. 89989

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

RICHARD FEARS

DEFENDANT-APPELLANT

JUDGMENT: APPLICATION DENIED

APPLICATION FOR REOPENING MOTION NO. 413811 LOWER COURT NO. CR-485288 COMMON PLEAS COURT

RELEASE DATE: October 14,

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[Cite as State v. Fears, 2008-Ohio-5342.]

ATTORNEYS FOR PLAINTIFF-APPELLEE William D. Mason Cuyahoga County Prosecutor By: Maureen E. Clancy Assistant County Prosecutor 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113

FOR DEFENDANT-APPELLANT Richard Fears, pro se Inmate No. 530-567 Belmont Correctional Inst.

P.O. Box 540 St. Clairsville, Ohio 43950

KENNETH A. ROCCO, J.:

On September 30, 2008, Richard Fears filed an application for reopening pursuant to App. R. 26(B). He is attempting to reopen the appellate judgment that was rendered by this court in State v. Fears (June 2, 2008), Cuyahoga App. No. 89989. In that opinion, we affirmed his conviction for gross sexual imposition. For the following reason, we decline to reopen Fear's appeal:

App.R. 26(B)(1) provides, in part: "An application for reopening shal be filed *** within ninety days from journalization of the appellate judgment unless the applicant shows good cause for filing at a later time." App.R. 26(B)(2)(b) requires that an application for reopening include "a showing of good cause for untimely filing

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if the application is filed more than ninety days after journalization of the appellate judgment."

This court's decision affirming applicant's conviction was journalized on June 2, 2008. However, Fears did not file his application for reopening until September 30, 2008, clearly in excess of the ninety-day limit.

The Supreme Court has upheld judgments denying applications for reopening solely on the basis that the application was not timely filed and the applicant failed to show "good cause for filing at a later time." App.R. 26(B)(1). See, e.g., State v. Gumm, 103 Ohio St.3d 162, 2004-Ohio-4755, 814 N.E.2d 861; State v.

LaMar, 102 Ohio St.3d 467, 2004-Ohio-3976, 812 N.E.2d 970. We need not, therefore, examine the merits of this application if Fears failed to demonstrate good cause for failing to file a timely application.

In his application, Fears argues that his counsel failed to inform him in a timely manner of the outcome of his appeal. This failure, Fears contends, denied him the, "adequate opportunity to avail himself of post-judgment remedies..." However, this court has consistently found that the failure of appellate counsel to communicate with his client does not constitute good cause. State v. Morgan (Mar. 16, 1989), Cuyahoga App. No. 55341, reopening disallowed, 2007-Ohio-5532, Motion No. 397723; State v. Gross, Cuyahoga App. No. 76836, 2005-Ohio-1664, at 2-5.

Fear's failure to demonstrate good cause is a sufficient basis for denying his application for reopening. See also State v. Collier (June 11, 1987), Cuyahoga App.

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No. 51993, reopening disallowed 2005-Ohio-5797, Motion No. 370333; State v.

Garcia (July 8, 1999), Cuyahoga App. No. 74427, reopening disallowed 2005-Ohio- 5796, Motion No. 370916. As a consequence, Fears has not met the standard for reopening.

Accordingly, the application for reopening is denied.

KENNETH A. ROCCO, JUDGE JAMES J. SWEENEY, A.J., and SEAN C. GALLAGHER, J., CONCUR

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