[Cite as State v. Smith, 2014-Ohio-5048.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO ) CASE NO. 10 MA 172
)
PLAINTIFF-APPELLEE )
)
VS. ) OPINION AND
) JUDGMENT ENTRY
TIMOTHY D. SMITH )
)
DEFENDANT-APPELLANT )
CHARACTER OF PROCEEDINGS: Appellant’s Motion for Delayed
Reopening
Case No. 09 CR 619
JUDGMENT: Denied.
APPEARANCES:
For Plaintiff-Appellee: Atty. Paul J. Gains
Mahoning County Prosecutor
Atty. Ralph M. Rivera
Assistant Prosecuting Attorney
21 West Boardman Street, 6th Floor
Youngstown, Ohio 44503
For Defendant-Appellant: Timothy D. Smith, Pro se
#593-376
Noble Correctional Institution
15708 McConnellsville Road
Caldwell, Ohio 43724
JUDGES:
Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Mary DeGenaro
Dated: November 7, 2014
[Cite as State v. Smith, 2014-Ohio-5048.]
WAITE, J.
{¶1} On June 11, 2014, Appellant Timothy D. Smith filed a delayed
application to reopen this Court’s judgment in State v. Smith, 7th Dist. No. 10 MA
172, 2012-Ohio-2722 in which we affirmed his convictions on aggravated robbery,
kidnapping, and failure to comply with an order or signal of a police officer while
fleeing the commission of a felony. App.R. 26(B) requires that applications for
reopening be filed within ninety days of the journalization of the appellate judgment or
provide good cause to explain the delay. The decision affirming Appellant’s
convictions was journalized on June 13, 2012. Appellant’s application was filed
approximately two years beyond the ninety-day period. Appellant offers no
explanation for the delay.
{¶2} An explanation containing good cause for any delay in filing an
application for reopening is required by App.R. 26(B)(2):
An application for reopening shall contain all of the following:
***
(b) A showing of good cause for untimely filing if the application is filed
more than ninety days after journalization of the appellate judgment.
Where an applicant does not comply with App.R. 26 the application is considered to
be incomplete and we need not reach its merits. State v. Reddick, 72 Ohio St.3d 88,
64 N.E.2d 784 (1995) (Appellant must show good cause, Appellant did not show
good cause and court of appeals correctly denied his application to reopen appeal).
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{¶3} Appellant bases his application for reopening on a claim of ineffective
assistance of counsel, citing State v. McDonald, 137 Ohio St.3d 517, 2013-Ohio-
5042 and State v. Morgan, 2010-Ohio-461 as they pertain to alleged defects in
verdict forms. Appellant has attached copies of some of the verdict forms used in his
trial. Even if Appellant had filed a timely request for reopening, it does not present a
colorable claim of ineffective assistance of appellate counsel. Reddick, supra;
McDonald, supra. When evaluating the effectiveness of appellate counsel, we are to
determine whether counsel’s performance fell below an objective standard of
reasonableness and whether there is reasonable probability the result of the appeal
would have been different but for serious error. See State v. Were, 120 Ohio St.3d
85, 2008-Ohio-5277, 896 N.E.2d 699, ¶10-11, citing Strickland v. Washington, 466
U.S. 668, 687-688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Appellant has the
burden of demonstrating a “genuine issue” and establishing a “colorable claim” of
ineffective assistance of appellate counsel. Id. at ¶11.
{¶4} In conducting this evaluation, we bear in mind that appellate counsel
has the discretion to choose which issues to address on appeal and need not raise
every possible issue in order to render constitutionally effective assistance. State v.
Tenace, 109 Ohio St.3d 451, 2006-Ohio-2987, 849 N.E.2d 1, ¶7, citing Jones v.
Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983). This discretion
is necessary because an attempt to raise every possible issue in the limited page
allowance may very well result in dilution of the force of the stronger arguments. Id.
at 751-752. “Experienced advocates since time beyond memory have emphasized
-3-
the importance of winnowing out weaker arguments on appeal”. Id. at 751.
Counsel’s decision as to this issue is entitled to strong deference as there is a wide
range of reasonable professional assistance. State v. Smith, 95 Ohio St.3d 127,
2002-Ohio-1753, 766 N.E.2d 588, ¶8.
{¶5} Assuming we could reach the merits here, Appellant’s argument that
counsel rendered ineffective assistance by electing to challenge the sufficiency and
the weight of the evidence against him rather than the form of the verdict sheets
clearly fails. The defect addressed by the Supreme Court in McDonald is patently
absent from this record. In McDonald, the requisite finding as to the possibility of
physical harm was not separately submitted to the jury. In Appellant’s case, the
finding that Appellant was fleeing the commission of a robbery and/or kidnapping
was, in fact, separately submitted to the jury. Counsel is not required to make futile
arguments and there is no indication in this record that this argument could be
successful. State v. Noling, 98 Ohio St.3d 44, 781 N.E.2d 88 (2002).
{¶6} A review of Appellant’s application reflects the absence of an
explanation of good cause for the two-year delay in filing. Appellant’s untimely
motion for reopening is denied.
Waite, J., concurs.
Donofrio, J., concurs.
DeGenaro, P.J., concurs.