State v. Jay Scott
| Decision Date | 05 March 1998 |
| Docket Number | 98-LW-1533,66846 |
| Parties | STATE OF OHIO, Plaintiff-appellee v. JAY SCOTT, Defendant-appellant CASE |
| Court | Ohio Court of Appeals |
APPLICATION FOR REOPENING, Motion No. 80072, Court of Common Pleas, Case No. CR-302396.
For plaintiff-appellee: GEORGE J. SADD, ESQ., KAREN L. JOHNSON ESQ., Assistant County Prosecutors, The Justice Center, 8th Floor, Chillicothe, OH 45601.
For defendant-appellant: Jay Scott, Pro Se, #284-149 Ross Prison Facility, P.O. Box 7010, Chillicothe, OH 45601.
On January 21, 1997, the applicant, Jay Scott, pursuant to App.R. 26(B) and State v. Murnahan (1992), 63 Ohio St.3d 60, 584 N.E.2d 1204, applied to reopen this court's judgment in State of Ohio v. Jay Scott (Apr. 17 1995), Cuyahoga App. No. 66846, unreported, which affirmed his convictions for felonious assault and two counts of vandalism. Although the State of Ohio has not filed a response, this court has reviewed the application and for the following reasons denies the application.
Grace Uitenham and Duane Williams had been married, and Mr. Williams was obligated to her for child support. Additionally, Ms. Uitenham had a romantic/sexual relationship with Mr. Scott.
On September 5, 1993, at approximately 2:30 a.m. Mr. Williams went to Ms. Uitenham's apartment to give her child support money. Mr. Scott arrived shortly thereafter and followed Mr. Williams to the apartment. An argument between Mr. Scott and Mr. Williams and Ms. Uitenham arose at the apartment door, and as Mr. Williams tried to shut the door, Mr. Scott stabbed him in the shoulder. Shortly, thereafter Mr. Williams saw a Camaro with its drivers side door open parked outside the apartment.
Mr. Williams and Ms. Uitenham called the police. While an officer was there, Mr. Uitenham said that Mr. Scott called, bragging about the assault and indicating that he had damaged their cars. Upon inspection the officer discovered that their cars' tires had been slashed.
At trial Racine Gresham, the person who had introduced Ms. Uitenham to Mr. Scott, testified that Mr. Scott called her shortly after the incident and admitted being at the apartment on September 5, but denied committing the assault. She also testified that before the trial Mr. Scott tried to confuse her about the date discussed during their initial conversation.
Mr. Scott presented an alibi defense at trial. He denied assaulting Mr. Williams. Rather, he testified that he attended a birthday party at a bar on the early morning of September 5, that the manager of the bar drove him home, and that after he was home he called his mother long distance to discuss a scripture passage. He presented a long distance telephone bill, showing that a call had been placed to her at 4:39 a.m. that day.
To support this defense, the manager of the bar testified that he drove Mr. Scott home that morning at approximately 3:00 a.m. Mr. Scott's uncle testified that Mr. Scott lived with him, that he did not let Mr. Scott use his Camaro that morning and that Mr. Scott brought him a piece of birthday cake from a party. Mr. Scott also put on character evidence from a former marine who had known him during boot camp years ago.
The jury convicted Mr. Scott. The trial court on January 13, 1994, sentenced him five to fifteen years for felonious assault and one year on each of the vandalism charges. All terms are to run concurrent.
On appeal his counsel argued the following: (1) The trial court abused its discretion by denying Mr. Scott's motion for a continuance in violation of his federal and Ohio constitutional rights to counsel; the gravamen of this argument was that Mr. Scott retained counsel shortly before trial, and the trial court should; have granted the continuance to allow counsel more time to prepare. (2) The trial court erred in denying Mr. Scott's motion for a continuance, thus denying his federal and Ohio constitutional rights to present witnesses on his behalf; this argument claimed that Mr. Scott needed more time to get witnesses, such as his mother, to Ohio. (3) Mr. Scott was denied a fair trial because of the prosecutors improper closing argument.
This court affirmed the convictions and sentences. During the appeal, Mr. Scott fired his attorney. After this court's decision he filed a motion for a delayed appeal to the Supreme Court of Ohio, which denied the motion on October 5, 1995.
Mr Scott now argues that his appellate counsel was ineffective for not arguing the following six assignments of error. (1) The trial court abused its discretion by denying him effective assistance of counsel, by denying trial counsel's motion for continuance, giving improper jury instruction on credibility and violating Mr. Scott's right to present witnesses on his behalf; this prejudiced Mr. Scott and violated his rights under the Fifth, Sixth and Fourteenth Amendment to the United States Constitution and Article I, Section 10 of the Ohio Constitution. (2) The prosecutor's improper closing argument prejudiced the jury, denying Mr. Scott a fair trial; additionally Mr. Scott's trial counsel was ineffective for not objecting. (3) The indictments were invalid because they contained improper specifications under R.C. 2941.142. (4) "The trial court and trial counsel was (sic) in conflict of interest, due to the fact that trial counsel was the trial court's law clerk, and no waiver was signed by the defendant permitting the trial counsel to proceed under current conflicts of interests, which are mandated by law." (5) "The trial court did not adhere to the sentencing requirements in determining the defendant's sentence which in turn, made, the sentence to a penal career of 5 to 15 years excessive," in violation of the Eighth Amendment. (6) "Whether the trial counsel was ineffective, violating the petitioner's civil rights and infected the jury's mind by not objecting to the state's use of the petitioner's view of religion as a credibility impediment in direct contrast to the Federal Rules of Evidence, Rule 610 and the Ohio Rules of Evidence, Rule 610."
App.R. 26(B)(1) and (2)(a) require that an application for reopening shall be filed within ninety days from the journalization of the appellate judgment unless the applicant shows good cause for filing at a later time. In the present case Mr. Scott filed his application approximately eighteen months after the journalization of this court's decision. Other than possibly his protestations of actual innocence, Mr. Scott in his multiple filings does not expend even one word on showing good cause for filing untimely. Nor do his protestations satisfy the requirement of showing "good cause for filing at a later time," because such claims do not show what prevented him from filing his application for a year and a half. This failure alone provides sufficient reason to deny the application. State v. Fautenberry (1997), 78 Ohio St.3d 320, 677 N.E.2d 1194; State v. Hill (1997), 78 Ohio St.3d 174, 677 N.E.2d 337 and State v. Sailors (1996), 77 Ohio St.3d 147, 672 N.E.2d 161.
Additionally, App.R. 26(B)(2)(d) requires a sworn statement of the basis for the claim that appellate counsel's representation was deficient and the manner in which the deficiency prejudicially affected the outcome of the appeal. Although Mr. Scott is prolific on his analysis of the case, he failed to submit the required affidavit.[1] This is a sufficient basis for denying the application. State v. Lechner (1995), 72 Ohio St.3d 374, 650 N.E.2d 449; State v. Phelps (Sept. 30, 1996), Cuyahoga App. No. 69157, unreported, reopening disallowed, (July 7, 1997), Motion No. 78189; State v. Young (Oct. 13, 1994), Cuyahoga App. Nos. 66768 and 66769, unreported, reopening disallowed (Dec. 5, 1995), Motion No. 66164; State v. Lister (Oct. 13, 1994), Cuyahoga App. No. 66054, unreported, reopening disallowed (June 20, 1995), Motion No. 59652 and State v. Smith (April 23, 1992), Cuyahoga App. No. 60509, unreported, reopening disallowed (Jan. 5, 1995), Motion No. 54234.
Mr. Scott's application to reopen was forty pages long. He supplemented that filing with another eight page brief. This violates App.R. 26(B)(4), which provides that an application for reopening shall not exceed ten pages, except for affidavits and parts of the record. Thus, his application is procedurally defective. State v. Schmidt (Dec. 5, 1991), Cuyahoga App. No. 57738, unreported, reopening disallowed (Aug. 10, 1994), Motion No. 42174 and State v. Peeples (Dec. 22, 1988), Cuyahoga App. No. 54708, unreported, reopening disallowed (Aug. 24, 1994), Motion No. 45080, affirmed (1994), 71 Ohio St. ad 349, 643 N.E.2d 1112.
The principles of res judicata may be applied to bar further litigation in a criminal case of issues which were raised previously or could have been raised previously in an appeal. See generally, State v. Perry (1967), 10 Ohio St.2d 175, 226 N.E.2d 104, paragraph nine of the syllabus. Res judicata may bar claims of ineffective assistance of appellate counsel unless circumstances render the application of the doctrine unjust. State v. Murnahan (1992), 63 Ohio St. 3d 60, 584 N.E.2d 1204. In the present case Mr. Scott sought to appeal his case to the Supreme Court of Ohio, which denied his motion to file a delayed appeal. Because the issues of ineffective assistance of appellate counsel or the substantive issues listed in the application for reopening either were raised or could have been raised previously, res judicata now bars relitigation of these matters.
Mr Scott's pleas of innocence, his rehashing of the testimony, his conclusory allegations of constitutional violations and his assertion of matters off the record do not persuade this court that the application...
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