State v. Reginald Jells
| Decision Date | 16 April 2000 |
| Docket Number | 00-LW-2193,54733 |
| Parties | STATE OF OHIO, Plaintiff-appellee v. REGINALD JELLS, Defendant-appellant CASE |
| Court | Ohio Court of Appeals |
APPLICATION FOR REOPENING, Motion No. 4594, Court of Common Pleas
For plaintiff-appellee: WILLIAM D. MASON, Cuyahoga County Prosecutor, RENO J. ORADINI, JR., Assistant County Prosecutors, The Justice Center, 8th Floor, 1200 Ontario Street, Cleveland, OH 44113.
For defendant-appellant: ROBERT M. INGERSOLL, Assistant Public Defender, 100 Lakeside Place, 1200 West Third Street Cleveland, OH 44113-1513.
In State v. Jells, Cuyahoga County Court of Common Pleas Case No. CR-217570, applicant was convicted by a three-judge panel of aggravated murder with a specification for kidnapping and sentenced to death. This court affirmed that judgment in State v. Jells (Apr. 20, 1989), Cuyahoga App. No. 54733, unreported. The Supreme Court of Ohio affirmed applicant's conviction in State v. Jells (1990), 53 Ohio St.3d 22, 559 N.E.2d 464.
Applicant has filed with the clerk of this court an application for reopening. Applicant asserts that he was denied the effective assistance of appellate counsel because appellate counsel failed to asserts various assignments of error. We deny the application for reopening. As required by App.R. 26(B)(6), the reasons for our denial follow.
Initially, we note that App.R. 26(B)(1) provides, in part:
"An application for reopening shall 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 of 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 May 1, 1989. The application was filed on March 1, 1999, clearly in excess of the ninety-day limit. The state argues that applicant has not demonstrated good cause for the untimely filing of the application. We agree.
Applicant's counsel avers that a judge of the United States District Court for the Northern District of Ohio assigned counsel on November 2, 1998 to represent applicant in a federal habeas corpus proceeding. Counsel further avers that, upon review of the record, he identified several assignments of error which appellate counsel had not raised. "Due to the circumstances of his representation, it is only now that Mr. Jells can raise these constitutional errors." Application, at 2.
This court has held that "lack of counsel or misplaced reliance does not exonerate the defendant from ensuring that the application is filed timely." State v. Sizemore (1998), 126 Ohio App.3d 143, 145146, 709 N.E.2d 943 [8th Dist., Case No. 69944]. The "circumstances of [applicant's] representation" do not, therefore, provide a sufficient basis for demonstrating good cause.
Fox, supra, at 516. See also State v. Webb (1999), 85 Ohio St.3d 365, 366, 708 N.E.2d 710. The Supreme Court decided State v. Murnahan (1992), 63 Ohio St.3d 60, 584 N.E.2d 1204, in 1992 and promulgated App.R. 26(B) effective in 1993. Any good cause which may have existed at one time did not exist at the time of filing the application.
Applicant's failure to demonstrate good cause is a sufficient basis for denying the application for reopening. As a consequence, applicant has not met the standard for reopening.
Res judicata also requires that we deny the application for reopening.
The principles of res judicata may be applied to bar the 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, 22 N.E.2d 104, paragraph nine of the syllabus. Claims of ineffective assistance of appellate counsel in an application for reopening may be barred by res judicata unless circumstances render the application of the doctrine unjust. State v. Murnahan (1992), 63 Ohio St.3d 60, 66, 584 N.E.2d 1204.
State v. Williams (Mar. 41, 1991), Cuyahoga App. No. 57988, unreported, reopening disallowed (Aug. 15, 1994), Motion No. 52164.
In his appeal to the Supreme Court of Ohio, applicant was represented by new counsel who had not represented him before this court. "The constitutional issue of ineffective assistance of appellate counsel either was raised or could have been raised in applicant's appeal by new counsel." State v. Johnson (Dec. 14, 1998), Cuyahoga App. No. 72541, unreported, reopening disallowed (May 27, 1999), Motion No. 4430, at 34, appeal dismissed (1999), 86 Ohio St.3d 1464, 715 N.E.2d 566 [Case No. 99-1252].
We also note that one of applicant's appellate counsel was also trial counsel. "The postconviction remedies provide the appropriate avenue for such a challenge under these circumstances." State v. Fuller (Nov. 8, 1993), Cuyahoga App. Nos. 63987 and 63988, unreported, reopening disallowed (Oct. 14, 1994), Motion No. 56538, at 2, quoted in State v. Vaughn (June 27, 1985), Cuyahoga App. No. 49311, unreported, reopening disallowed (Sept. 10, 1997), Motion No. 81342, at 5. The involvement of trial counsel in the appeal provides another basis for our concluding that the application for reopening is not well-taken.
Likewise, the affidavit of counsel accompanying the application is not sufficient to comply with App. R. 26(B)(2) which provides, in part:
In Johnson, supra, applicant's counsel filed a second affidavit after appellee challenged his initial affidavit as failing to comply with App.R. 26(B)(2)(d).
Because neither of counsel's affidavits specifies the deficiency of trial and appellate counsel and how it prejudiced applicant's trial and appeal, we have no information with which to conclude that applicant suffered any prejudice at all. See State v. Sweet (1995), 72 Ohio St.3d 375, 650 N.E.2d 450.
In his affidavit, applicant's counsel avers that he is an attorney who was assigned to represent applicant in a federal habeas corpus proceeding. Counsel further avers that: his review of the record in applicant's case led him to identify several assignments of error which set forth prejudicial deficiencies in the representation of appellate counsel; if appellate counsel had identified these assignments of error, applicant's conviction and death sentence would have been vacated and relief would have been granted on appeal; and each assignment of error is substantive. These averments are comparable to those in Johnson, supra, and we must reach the same conclusion as we did in Johnson that the affidavit of applicant's counsel does not set forth "the basis for the claim that appellate counsel's representation was deficient with respect to the assignments of error or arguments raised pursuant to division (B)(2)(c) of this rule and the manner in which the deficiency prejudicially affected the outcome of the appeal * * *." App.R. 26(B)(2)(d). As a consequence, applicant's failure to support the application with an affidavit which complies with the requirements of App.R. 26(B)(2)(d) provides a ground for denying the application.
We also deny the application on the merits. Having reviewed the arguments set forth in the application for reopening in light of the record, we hold that applicant has failed to meet his burden to demonstrate that "there is a genuine issue as to whether the applicant was deprived of the effective assistance of counsel on appeal." App.R. 26(B)(5). In State v. Spivey (1998), 84 Ohio St.3d 24, 701 N.E.2d 696, the Supreme Court specified the proof required of an applicant:
In State v. Reed (1996), 74 Ohio St.3d 534, 535, 660 N.E.2d 456, 458, we held that the two prong analysis found in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, is the appropriate standard to assess a defense request for reopening under App.R. 26(B)(5). [Applicant] must prove that his counsel...
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