State v. Pointer

[Cite as State v. Pointer, 2014-Ohio-2258.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION Nos. 77294 and 85195

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

DENNIS POINTER DEFENDANT-APPELLANT

JUDGMENT: APPLICATION DENIED

Cuyahoga County Court of Common Pleas Case No. CR-93-294529 Application for Reopening Motion Nos. 473636 and 473702

RELEASE DATE: May 28, 2014

FOR APPELLANT

Dennis W. Pointer Inmate No. 0169-139 P.O. Box 5600 Cleveland, Ohio 44101

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor

By: Diane Smilanick Assistant County Prosecutor 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113

EILEEN T. GALLAGHER, J.:

{¶1} Dennis Pointer has filed an application for reopening pursuant to App.R. 26(B). Pointer is attempting to reopen the appellate judgments, rendered by this court in State v. Pointer, 8th Dist. Cuyahoga No. 77294 (Dec. 17, 1999) and State v. Pointer, 8th Dist. Cuyahoga No. 85195, 2005-Ohio-3587. For the following reasons, Pointer’s application for reopening is not well taken.

{¶2} Initially, we find that App.R. 26(B) is not applicable to the facts pertinent to the appeal in App. No. 77294. No appellate judgment, which reviewed Pointer’s plea of guilty to the offenses of murder and sexual battery, has been announced and journalized by this court. This court denied Pointer’s motion for a delayed appeal on December 17, 1999. Thus, we are prevented from considering Pointer’s application for reopening. State v. Skaggs, 8th Dist. Cuyahoga No. 76301, 1999 Ohio App. LEXIS 4680 (Sept. 21, 1999). See also State v. Loomer, 76 Ohio St.3d 398, 667 N.E.2d 1209 (1996); State v. Halliwell, 8th Dist. Cuyahoga No. 70369, 1999 Ohio App. LEXIS 285 (Jan. 28, 1999); State v. Fields, 8th Dist. Cuyahoga No. 68906, 1997 Ohio App. LEXIS 4109 (Sept. 5, 1997); State v. Williams, 8th Dist. Cuyahoga No. 69936, 1996 Ohio App. LEXIS 4796 (Oct. 31, 1996).

{¶3} In addition, an application for reopening may be granted by this court only upon a showing that there exists a genuine issue as to whether the applicant was deprived of the effective assistance of appellate counsel on appeal. See App.R. 26(B)(5). Since no appellate counsel was involved in App. No. 85195, Pointer cannot establish a claim of ineffective assistance of appellate counsel. State v. McCauley, 8th Dist. Cuyahoga No. 81328, 2005-Ohio-6093. Pointer is also precluded from arguing his own ineffectiveness on appeal vis-a-vis his pro se representation. State v. Boone, 114 Ohio App.3d 275, 683 N.E.2d 67 (7th Dist. 1996); State v. Henderson, 8th Dist. Cuyahoga No. 95655, 2013-Ohio-2524; State v. Jackson, 8th Dist. Cuyahoga No. 80118, 2002-Ohio-5461.

{¶4} It must also be noted that an applicant is permitted to file only one application for reopening with regard to an appeal. Pointer has already filed an App.R. 26(B) application for reopening, with regard to App. No. 85195, on March 18, 2014. Neither App.R. 26(B) nor State v. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204 (1992), provides for second and subsequent applications for reopening. State v. Cooey, 99 Ohio St.3d 345, 2003-Ohio-3914, 792 N.E.2d 720; State v. Williams, 99 Ohio St.3d 179, 2003-Ohio-3079, 790 N.E.2d 299; State v. Richardson, 74 Ohio St.3d 235, 658 N.E.2d 273 (1996).

{¶5} Finally, App.R. 26(B)(2)(b) requires that Pointer establish a showing of good cause for untimely filing if the application for reopening is filed more than 90 days after journalization of the appellate judgment, which is subject to reopening. Herein, Pointer is attempting to reopen the appellate judgments journalized on December 17, 1999, and July 25, 2005. Pointer’s application for reopening was not filed until April 1, 2014, more than 90 days after journalization of the appellate judgments in App. No. 77294 and App. No. 85195. Pointer has failed to establish good cause for the untimely filing of his application for reopening. Thus, we are required to deny his application for reopening. State v. Gumm, 103 Ohio St.3d 162, 2004-Ohio-4755, 814 N.E.2d 861; State v. LaMar, 102 Ohio St.3d 467, 2004-Ohio-3976, 812 N.E.2d 970; State v. Cooey, supra.

{¶6} Application for reopening is denied.

EILEEN T. GALLAGHER, JUDGE

LARRY A. JONES, SR., P.J., and MELODY J. STEWART, J., CONCUR