State v. Davis

[Cite as State v. Davis, 2013-Ohio-5015.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA JOURNAL ENTRY AND OPINION Nos. 97689, 97691 and 97692 STATE OF OHIO

PLAINTIFF-APPELLEE vs. EDDIE DAVIS

DEFENDANT-APPELLANT

JUDGMENT: APPLICATION DENIED Cuyahoga County Court of Common Pleas Case Nos. CR-554690, CR-553823, and CR-555904 Application for Reopening Motion No. 469316

RELEASE DATE: November 13, 2013

FOR APPELLANT Eddie Davis, pro se Inmate No. 621-253 Lake Erie Correctional Institution P.O. Box 8000 Conneaut, Ohio 44030 ATTORNEYS FOR APPELLEE Timothy J. McGinty Cuyahoga County Prosecutor By: Mark D. Bullard

T. Allan Regas Assistant County Prosecutors Justice Center, 8th and 9th Floors 1200 Ontario Street Cleveland, Ohio 44113 EILEEN T. GALLAGHER, J.:

{¶1} On October 24, 2013, the applicant, Eddie Davis, pursuant to App.R. 26(B), applied to reopen this court’s judgment in State v. Davis, 8th Dist. Cuyahoga Nos. 97689, 97691 and 97692, 2012-Ohio-3951, in which this court affirmed Davis’s sentences for burglary, theft, and breaking and entering.1 Davis now argues that his appellate counsel should have argued that the burglary and theft charges were allied offenses and that the trial court did not comply with H.B. 86 in imposing consecutive sentences. For the following reasons, this court denies the application.

{¶2} App.R. 26(B)(1) and (2)(b) require applications claiming ineffective assistance of appellate counsel to be filed within 90 days from journalization of the decision unless the applicant shows good cause for filing at a later time. Davis’s October 2013 application was filed approximately 14 months after this court’s decision. Thus, the application is untimely on its face. In an effort to show good cause, Davis stated the following in paragraph four of his supporting affidavit: “Appellant[’s] reason for delay is due to his ongoing health treatment and medications in which the Appellant suffers from seizures due to being shot in the head [sic] which he is prescribed Dilantin.” However, Davis does not support his claim with any medical records or documentation.

{¶3} In State v. Gilbert, 8th Dist. Cuyahoga No. 90856, 2009-Ohio-607, reopening disallowed, 2010-Ohio-4103, this court held that a self-serving affidavit pleading medical incapacity does not show good cause for untimely filing. This court reasoned that it would be all too easy for an applicant to claim a medical excuse; thus, a medical claim must be supported by authenticated records substantiating the medical condition in order to show good cause. State v. Brooks, 8th Dist. Cuyahoga No. 94978, 2011-Ohio-1679, reopening disallowed 2012-Ohio-915; State v. Austin, 8th Dist. Cuyahoga No. 87169, 2006-Ohio-4120, reopening disallowed, 2012-Ohio-1338; and State v. Kinder, 8th Dist. Cuyahoga No. 94722, 2011-Ohio-1061, reopening disallowed 2012-Ohio-1339. Therefore, Davis has not established good cause.

{¶4} Moreover, the Supreme Court of Ohio in State v. LaMar, 102 Ohio St.3d 467, 2004-Ohio-3976, 812 N.E.2d 970, and State v. Gumm, 103 Ohio St.3d 162, 2004-Ohio-4755, 814 N.E.2d 861, held that the 90-day deadline for filing must be strictly enforced. Because Davis has not established good cause for untimely filing, this court denies the application.

{¶5} Accordingly, the application for reopening is denied.

2929.14 to impose consecutive sentences.

EILEEN T. GALLAGHER, JUDGE EILEEN A. GALLAGHER, P.J., and PATRICIA ANN BLACKMON, J., CONCUR