State v. Bell, 95-349

• Decision Date: 09 August 1995
• Docket Number: No. 95-349,95-349
• Citation: 73 Ohio St.3d 32,652 N.E.2d 191
• Parties: The STATE of Ohio, Appellee, v. BELL, Appellant.
• Court: Ohio Supreme Court

Page 32

73 Ohio St.3d 32

652 N.E.2d 191

The STATE of Ohio, Appellee, v. BELL, Appellant.

No. 95-349.

Supreme Court of Ohio.

Submitted April 18, 1995.

Decided Aug. 9, 1995.

According to the court of appeals' opinion, in 1989, appellant, Wade M. Bell, was convicted of felonious assault upon a police officer with aggravated felony specifications. The court of appeals affirmed the judgment of conviction in May 1991. Later, in 1991, appellant filed a pro se notice of appeal to this court, which was subsequently denied. Still later that year, he filed a pro se motion for reconsideration in the court of appeals, which was also denied.

In 1992, appellant applied for delayed reconsideration of his direct appeal pursuant to App.R. 26 and State v. Murnahan (1992), 63 Ohio St.3d 60, 584 N.E.2d 1204, alleging ineffective assistance of appellate counsel. This application, which contained references to the trial transcript, was also denied. Appellant then filed a motion for leave to appeal this first application for reconsideration, which we denied.

On October 28, 1994, appellant filed a second Murnahan application, this time under App.R. 26(B), again arguing ineffective assistance of appellate counsel. The court of appeals denied the application to reopen, finding that the claims were barred by res judicata, and that, in any event, the claims lacked merit. The appellant now appeals to this court.

Stephanie Tubbs Jones, Cuyahoga County Pros. Atty., and Karen L. Johnson, Asst. Pros. Atty., for appellee.

Wade M. Bell, pro se.

PER CURIAM.

We affirm the judgment of the court of appeals for the following reasons.

App.R. 26(B) states in part:

"(1) A defendant in a criminal case may apply for reopening of the appeal from the judgment of conviction and sentence, based on a claim of ineffective assistance of appellate counsel. An application for reopening shall be filed in the court where the appeal was decided within ninety days from journalization of the appellate judgment unless the applicant shows good cause for filing at a later time.

"(2) An application for reopening shall contain all of the following:

" * * *

"(b) A showing of good cause for untimely filing if the application is filed more than ninety days after journalization of the appellate judgment * * *."

Because appellant's application was filed nearly three and one-half years after the decision he seeks to reopen, he must show good cause for the untimely filing. He contends he was previously denied access to a full trial transcript and that this constitutes good cause for his late filing. However, the bases of his claims--the alleged failure to prove the police-officer specification and the failure of the trial court to give the jury an accident-defense charge--do not require a transcript to be identified. Rather, they should have been evident at all stages of postconviction relief. Moreover, we note that petitioner had sufficient access...