[Cite as State v. Havergne, 2012-Ohio-4270.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96951
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
TYRELL HAVERGNE
DEFENDANT-APPELLANT
JUDGMENT:
APPLICATION DENIED
Cuyahoga County Common Pleas Court
Case No. CR-523541
Application for Reopening
Motion No. 455517
RELEASE DATE: September 17, 2012
FOR APPELLANT
Tyrell Havergne, pro se
Inmate No. A-583794
Trumbull Correctional Institution
P.O. Box 901
Leavittsburg, Ohio 44430
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
By: Mark J. Mahoney
Assistant County Prosecutor
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., J.:
{¶1} Tyrell Havergne has filed an application for reopening pursuant to App.R.
26(B). Havergne is attempting to reopen the appellate judgment, as rendered in State v.
Havergne, 8th Dist. No. 96951, 2012-Ohio-810, which affirmed the sentence imposed by
the trial court after remand for the merger of allied offenses of similar import. We
decline to reopen Havergne’s appeal.
{¶2} App.R. 26(B)(2)(b) requires that Havergne establish “a showing of good
cause for untimely filing if the application is filed more than 90 days after journalization
of the appellate judgment,” which is subject to reopening. The Supreme Court of Ohio,
with regard to the 90-day deadline as provided by App.R. 26(B)(2)(b), has established
that:
We now reject [the applicant’s] claims that those excuses gave good cause
to miss the 90-day deadline in App.R. 26(B). *** Consistent enforcement
of the rule’s deadline by the appellate courts in Ohio protects on the one
hand the state’s legitimate interest in the finality of its judgments and
ensures on the other hand that any claims of ineffective assistance of
appellate counsel are promptly examined and resolved.
Ohio and other states “may erect reasonable procedural requirements for
triggering the right to an adjudication,” Logan v. Zimmerman Brush Co.
(1982), 455 U.S. 422, 437, 102 S.Ct. 1148, 71 L.Ed.2d 265, and that is what
Ohio has done by creating a 90-day deadline for the filing of applications to
reopen. * * * The 90-day requirement in the rule is applicable to all
appellants, State v. Winstead (1996), 74 Ohio St.3d 277, 278, 658 N.E.2d
722, and [the applicant] offers no sound reason why he — unlike so many
other Ohio criminal defendants — could not comply with that fundamental
aspect of the rule. (Emphasis added.)
State v. Gumm, 103 Ohio St.3d 162, 2004-Ohio-4755, 814 N.E.2d 861, ¶ 7. See also State
v. LaMar, 102 Ohio St.3d 467, 2004-Ohio-3976, 812 N.E.2d 970; State v. Cooey, 73
Ohio St.3d 411, 1995-Ohio-328, 653 N.E.2d 252; State v. Reddick, 72 Ohio St.3d 88,
1995-Ohio-249, 647 N.E.2d 784.
{¶3} Herein, Havergne is attempting to reopen the appellate judgment that was
journalized on March 1, 2012. The application for reopening was not filed until May 31,
2012, more than 90 days after journalization of the appellate judgment in Havergne,
supra. Havergne has failed to establish “a showing of good cause” for the untimely
filing of his application for reopening. State v. Klein, 8th Dist. No. 58389, 1991 Ohio
App. LEXIS 1346 (Mar. 28, 1991), reopening disallowed, Motion No. 249260 (Mar. 15,
1994), aff’d, 69 Ohio St.3d 1481, 634 N.E.2d 1027 (1994); State v. Trammell, 8th Dist.
No. 67834, 1995 Ohio App. LEXIS 2962 (July 13, 1995), reopening disallowed, Motion
No. 270493 (Apr. 22, 1996); State v. Travis, 8th Dist. No. 56825, 1990 Ohio App.
LEXIS 1356 (Apr. 5, 1990), reopening disallowed, Motion No. 251073 (Nov. 3, 1994),
aff’d, 72 Ohio St.3d 317, 1995-Ohio-152, 649 N.E.2d 1226. See also State v. Gaston,
8th Dist. No. 79626, 2007-Ohio-155; State v. Torres, 8th Dist. No. 86530, 2007-Ohio-9.
{¶4} Accordingly, the application for reopening is denied.
FRANK D. CELEBREZZE, JR., JUDGE
MARY J. BOYLE, P.J., and
LARRY A. JONES, SR., J., CONCUR