[Cite as State v. Cowan, 2013-Ohio-1172.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97877
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
CRAIG A. COWAN
DEFENDANT-APPELLANT
JUDGMENT:
APPLICATION DENIED
Cuyahoga County Court of Common Pleas
Case No. CR-550536
Application for Reopening
Motion No. 462840
BEFORE: Jones, P.J., E.A. Gallagher, J., and E.T. Gallagher, J.
RELEASED AND JOURNALIZED: March 22, 2013
FOR APPELLANT
Craig A. Cowan
Inmate No. 622-034
Trumbull Correctional Institution
5701 Burnett Road
Leavittsburg, Ohio 44430
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Brad S. Meyer
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., P.J.:
{¶1} On February 28, 2013, the applicant, Craig Cowan, pursuant to App.R. 26(B)
and State v. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204 (1992), applied to reopen this
court’s judgment in State v. Cowan, 8th Dist. No. 97877, 2012-Ohio-5723, in which this
court affirmed Cowan’s convictions for felonious assault, discharging a firearm near or
on a prohibited premises, having a weapon under disability, and improperly handling a
firearm in a motor vehicle, but vacated his sentence in part and remanded the case for
resentencing pursuant to R.C. 2929.14. Cowan now seeks to reopen his appeal on the
grounds of ineffective assistance of appellate counsel. He asserts that his appellate
counsel should have argued that the trial court erred in not ruling on Cowan’s motion for
self-representation at trial. For the following reasons, this court denies the application
sua sponte.
{¶2} Res judicata properly bars this application. See generally State v. Perry, 10
Ohio St.2d 175, 226 N.E.2d 104 (1967). Res judicata prevents repeated attacks on a
final judgment and applies to all issues that were or might have been litigated. In
Murnahan, supra, the Supreme Court ruled that res judicata may bar a claim of
ineffective assistance of appellate counsel unless circumstances render the application of
the doctrine unjust.
{¶3} In the present case, Cowan obtained leave to file his own pro se brief in
addition to the brief of his appellate counsel. However, this court limited the pro se brief
to ten pages. Cowan’s 21-page pro se brief argued (1) that the trial court erred when it
did not grant a pretrial hearing for his motion for self-representation, (2) the trial court
erred in allowing evidence of Cowan’s prior conviction to be presented to the jury, and
(3) the verdict was not supported by sufficient evidence.
{¶4} This court declined to address the pro se brief, because Cowan had
disregarded this court’s order limiting the size of the brief. The courts have repeatedly
ruled that res judicata bars an application to reopen when the appellant has filed a pro se
brief. State v. Tyler, 71 Ohio St.3d 398, 1994-Ohio-8, 643 N.E.2d 1150; State v. Boone,
114 Ohio App.3d 275, 683 N.E.2d 67 (7th Dist. 1996); and State v. Williams, 8th Dist.
No. 69936, 1996 Ohio App. LEXIS 4796, (Oct. 31, 1996), reopening disallowed, Motion
No. 280441 (Apr. 24, 1997). This court would have addressed Cowan’s arguments, but
he violated the court’s order. It is his own fault that his arguments were not considered.
As the United States Supreme Court noted in Faretta v. California, 422 U.S. 806, 834,
95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), fn. 46, “a defendant who elects to represent
himself cannot thereafter complain that the quality of his own defense amounted to a
denial of ‘effective assistance of counsel.’” Under such circumstances, the application of
res judicata is appropriate.
{¶5} Accordingly, the application for reopening is denied.
LARRY A. JONES, SR., PRESIDING JUDGE
EILEEN A. GALLAGHER, J., and
EILEEN T. GALLAGHER, J., CONCUR