State v. Eric M. Miller, 97-LW-0737

• Decision Date: 18 March 1997
• Docket Number: 97-LW-0737,59987
• Parties: STATE OF OHIO, PLAINTIFF v. ERIC M. MILLER, DEFENDANT-APPLICANT CASE
• Court: Ohio Court of Appeals

STATE OF OHIO, PLAINTIFF v. ERIC M. MILLER, DEFENDANT-APPLICANT

No. 59987.

97-LW-0737 (8th)

Court of Appeals of Ohio, Eighth District Cuyahoga

March 18, 1997

Application for Reopening, Motion No. 79261, Lower Court No. CR-245076 Common Pleas Court.

For Plaintiff: Stephanie Tubbs Jones, Esq., Cuyahoga County Prosecutor, John R. Mitchell, Esq., Assistant Prosecuting Attorney, Justice Center - 8th Floor, 1200 Ontario Street Cleveland, OH 44113.

For Defendant-Applicant: Wesley A. Dumas, Esq., 1800 Superior Building, Cleveland, OH 44114-1752; Eric M. Miller, pro se, Serial No. A221-852, Mansfield Correctional Institute, P.O. Box 788, Mansfield, OH 44901.

OPINION

DAVID T. MATIA, P.J.

Eric M. Miller, applicant, filed a Delayed Application for Reopening on December 24, 1996 (Motion No. 79261). He is attempting to reopen the judgment of this court in State v. Miller (Mar. 23, 1992), Cuyahoga App. No. 59987 unreported. The state filed a brief in opposition to reopening and, for the reasons that follow and those argued by the prosecutor, we deny the application for reopening.

A showing of good cause must be made when an application for reopening is filed more than ninety days after journalization of the appellate judgment. App.R. 26(B)(1), (2)(b). The judgment in this case was journalized on March 23, 1992, and applicant did not file for reopening until December 24, 1996. Consequently, applicant must demonstrate good cause for his delay. Absent a showing of good cause for an untimely filing the applicant for reopening may be denied. State v Wickline (1996), 74 Ohio St.3d 369, 658 N.E. 2d 1052.

Applicant states that his lack of knowledge and lack of counsel prevented him for filing sooner. However, neither lack of counsel nor ignorance of the law have been accepted as constituting good cause for delayed filings. State v. Pierce (1996), 74 Ohio St.3d 453, 659 N.E.2d 1252; State v. Reddick (1995), 72 Ohio St.3d 88, 647 W.E.2d 784; State v. Booker (Aug. 9, 1993), Cuyahoga App. No. 62841, unreported, reopening disallowed (Dec. 30, 1996), Motion No. 78561; State v. McCarter (Apr. 19, 1993), Cuyahoga App. No. 62346, unreported, reopening disallowed (Aug. 12, 1994), Motion No. 43167; State v. Klein (Apr. 8, 1991), Cuyahoga App. No. 58389, unreported, reopening disallowed (Mar. 15, 1994), Motion No. 49260, affirmed (July 6, 1994), 69 Ohio St.3d 1481; State v. Bridgeman (Feb. 19, 1980), Cuyahoga App. No. 39346, unreported, reopening disallowed (Feb. 28, 1997), Motion No. 77614. Consequently, the application for reopening is denied.

In addition, the principles of res judicata preclude further review of this matter. The issue of whether appellate counsel provided effective assistance must be raised at the earliest opportunity to do so. State v. Williams (1996), 74 Ohio St.3d 454, 659 N.E.2d 1253. Applicant filed an appeal to the Supreme Court of Ohio from the decision of this court which affirmed his convictions. Applicant either raised or could have raised this issue at that time. Applicant provides no reason why the application of res judicata to his claim to bar further review would be unjust. The application to reopen is...