State v. Harry D. Mitts, 02-LW-6151
| Decision Date | 10 May 2002 |
| Docket Number | 68612,02-LW-6151 |
| Citation | 2002 Ohio 7457 |
| Parties | STATE OF OHIO, Plaintiff-Appellee v. HARRY D. MITTS, JR., Defendant-Appellant |
| Court | Ohio Court of Appeals |
CHARACTER OF PROCEEDING Application for Reopening, Motion No. 35082 Lower Court No. CR-313539 Common Pleas Court.
JUDGMENT APPLICATION DENIED.
For plaintiff-appellee William D. Mason, Esq., Cuyahoga County Prosecutor, BY: Renee L. Snow, Esq. , Assistant County Prosecutor , The Justice Center - 8th Floor , 1200 Ontario Street , Cleveland, Ohio 44113
For defendant-appellant Robert A. Dixon, Esq., 4403 St. Clair Avenue, Cleveland, Ohio 44103, Patricia Koch Windham, Esq. Assistant Public Defender, 1200 West Third Street, 100 Lakeside Place, Cleveland, Ohio 44113
{¶1} On January 14, 2002, applicant Harry D Mitts, Jr., by and through counsel, 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. Mitts (Dec. 19, 1996), Cuyahoga App. No. 68612. In his application, Mitts proposes the following assignments of error:
{¶2} "I. THE CUMULATIVE EFFECT OF PROSECUTORIAL MISCONDUCT DURING THE MITIGATION PHASE DEPRIVED THE APPELLANT OF HIS RIGHT TO A FAIR TRIAL AS GUARANTEED BY THE FIFTH, EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.
{¶3} "II. THE TRIAL COURT'S INSTRUCTIONS AT THE MITIGATION PHASE ALLOWING THE JURY TO DETERMINE WHAT EVIDENCE COULD BE CONSIDERED CONCERNING THE AGGRAVATING CIRCUMSTANCES RESULTED IN VIOLATION OF THE APPELLANT'S RIGHTS PURSUANT TO THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.
{¶4} "III. THE TRIAL COURT'S ERRONEOUS INSTRUCTIONS TO THE JURY DURING THE CULPABILITY PHASE REGARDING THE BURDEN OF PROOF AND THE SUBJECT OF PUNISHMENT VIOLATED THE APPELLANT'S RIGHTS PURSUANT TO THE FIFTH, EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.
{¶5} "IV. THE APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF HIS RIGHTS PURSUANT TO THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.
{¶6} "V. THE DEATH PENALTY VIOLATES INTERNATIONAL LAW.
{¶7}
{¶8} On February 8, 2002, the state of Ohio, through the Cuyahoga County prosecutor's office, filed a memorandum of law in opposition to the application for reopening.
{¶9} On August 25, 1994, Mitts was indicted by the Cuyahoga County Grand Jury for four counts in connection with the shooting deaths of Sergeant Dennis Glivar of the Garfield Heights police department and John Bryant; and the attempted murders of Lieutenant Thomas Kaiser of the Garfield Heights police department and Maple Heights police officer Thomas Mackey. The first count charged the applicant with aggravated murder with a firearm specification, a peace officer specification, and three mass murder specifications. Count two charged the applicant with aggravated murder with a firearm specification and three mass murder specifications. Counts three and four charged the applicant with attempted murder with firearm specifications, peace officer specifications and three mass murder specifications.
{¶10} The matter proceeded to a jury which found the applicant guilty of all charges. During the penalty phase, the jury found that the aggravating circumstances outweighed the mitigating factors beyond a reasonable doubt and recommended the death penalty. Thereafter, the trial court sentenced the applicant to death on both aggravated murder charges, and to consecutive terms of ten to twenty-five years for the attempted murder counts. On appeal, this court affirmed the conviction and death sentence, see Mitts, supra; and on March 11, 1998, the Supreme Court of Ohio affirmed Mitts' conviction and death penalty. State v. Mitts, 81 Ohio St.3d 223, 1998-Ohio-635, 690 N.E.2d 522.
{¶11} On September 25, 1996, Mitts filed a petition for postconviction relief which was subsequently amended on March 23, 1999. Mitts' amended petition was denied by the trial court on August 16, 1999. In State v. Mitts (Sept. 28, 2000), Cuyahoga App. No. 76963, this court affirmed the trial court's decision. The Supreme Court of Ohio declined jurisdiction to hear applicant's appeal.
{¶12} Thereafter, on April 9, 2001, Mitts filed a motion for appointment of counsel to reopen his appeal pursuant to App.R. 26(B), which was granted by this court. On September 28, 2001, counsel filed a motion for extension of time to file the application to reopen, which was granted.
{¶13} As mandated by App.R. 26(B)(2)(b), an application for reopening must be filed within ninety days of journalization of the appellate judgment which the applicant seeks to reopen. The applicant must establish "good cause" if the application for reopening is filed more than ninety days after journalization of the appellate judgment. State v. Cooey, 73 Ohio St.3d 411, 1995-Ohio-328, 653 N.E.2d 252; State v. Reddick, 72 Ohio St.3d 88, 1995-Ohio-249, 647 N.E.2d 784.
{¶14} Herein, Mitts is attempting to reopen the appellate judgment that was journalized on December 30, 1996. He did not file his application for reopening until January 14, 2002, more than six years after journalization of the appellate judgement in State v. Mitts (Dec. 19, 1996), Cuyahoga App. No. 68612. Mitts' counsel, however, asserts the "application is timely in that (Mitts) is entitled to the appointment of counsel and that any applicable deadlines for filing cannot begin to run until counsel is appointed." Counsel further states that this court granted him an extension until January 14, 2001 to file the application to reopen.
{¶15} However, counsel's argument that Mitts is entitled to the appointment of counsel is based upon an incorrect premise.
{¶16} State v. Dozier (Jan. 17, 1980), Cuyahoga App. Nos. 40186 and 40187, reopening disallowed (Jan. 3, 2002), Motion No. 33149. See, also, State v. Bragg (July 15, 1991), Cuyahoga App. No. 58859, reopening disallowed (Nov. 26, 2001), Motion No. 27560; State v. Darrington (Oct. 2, 1995), Cuyahoga App. No. 65588, reopening disallowed (Oct. 27, 2000), Motion No. 17770; State v. Walker (May 31, 1994), Cuyahoga App. No. 47616, reopening disallowed (Aug. 3, 2001), Motion No. 27447; State v. Creasey (Nov. 23, 1994), Cuyahoga App. Nos. 65717 and 65718, reopening disallowed (Aug. 29, 2001), Motion No. 24781.
{¶17} Moreover, counsel fails to cite any authority in support of this proposition. Therefore, because an applicant does not have a right to counsel, counsel's assertion that the time period to file does not begin to run until counsel is appointed does not have merit.
{¶18} Nor do we find that this court's extension waived the applicable time requirements. In the matter sub judice, Mitts' application should have been filed on or before March 31, 1997 to have been considered timely.[1] Accordingly, we find that the application is untimely on its face.
{¶19} In an attempt to establish "a showing of good cause," Mitts, through counsel, asserts that "the failure to appoint counsel as constitutionally required precludes the imposition of a filing deadline upon an indigent and incarcerated individual who has neither the resources or expertise to file such action." Furthermore, "the State has an obligation to advise Appellant of his right to pursue relief with counsel at State expense." However, the absence or denial of counsel does not show good cause for untimely filing. Walker, supra; Creasey, supra.
{¶20} Additionally, this court and the Supreme Court of Ohio have firmly established that a lack of legal training is not a viable ground for establishing "good cause" for the untimely filing of an application for reopening. State v. Klein (Apr. 8, 1991), Cuyahoga App. No. 58389, reopening disallowed (Mar. 15, 1994), Motion No. 49260, affirmed (1994), 69 Ohio St.3d 1481, 634 N.E.2d 1027; State v. Trammel (July 24, 1995), Cuyahoga App. No. 67834, reopening disallowed (Apr. 22, 1996), Motion No. 70493; State v. Travis (Apr. 5, 1990), Cuyahoga App. No. 56825, reopening disallowed (Nov. 2, 1994), Motion No. 51073, affirmed (1995), 72 Ohio St.3d 317, 649 N.E.2d 1226. Nor does ignorance of the law constitute good cause for failing to timely file an application for reopening. State v. Turner (Nov. 16, 1989), Cuyahoga App. No. 55960, reopening disallowed (Aug. 20, 2001), Motion No. 23221; State v. Railing (Oct. 20, 1994), Cuyahoga App. No. 67137, reopening disallowed (Aug. 30, 1996), Motion No. 72596, at 2.
{¶21} Furthermore, limited access to legal materials does not establish good cause. State v. Stearns (July 24, 2000), Cuyahoga App. No. 76513, reopening disallowed (Feb. 14, 2002), Motion No. 27761; State v. Kaszas (Sept. 21, 1998), Cuyahoga App. Nos. 72546 and 72547, reopening disallowed (Aug. 14, 2000), Motion No. 16752; State v. Hickman (Apr. 30, 1998), Cuyahoga App. No. 72341, reopening disallowed (Dec. 13, 2000), Motion No. 20830; and Turner, supra.
{¶22} Counsel also argues that because Mitts was represented by the same counsel throughout his direct appeals, counsel could not be expected to raise his own ineffectiveness. This argument is also unpersuasive and...
To continue reading
Request your trial