[Cite as State v. Orr, 2020-Ohio-4913.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 100841
v. :
DARLLEL B. ORR, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: APPLICATION DENIED
RELEASED AND JOURNALIZED: October 9, 2020
Cuyahoga County Court of Common Pleas
Case No. CR-12-560637-A
Application for Reopening
Motion No. 541320
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney and Brent Kirvel, Assistant Prosecuting
Attorney, for appellee.
Darllel B. Orr, pro se.
MARY J. BOYLE, P.J.:
On September 23, 2020, the applicant, Darllel Orr, pursuant to
App.R. 26(B) applied to reopen this court’s judgment in State v. Orr, 8th Dist.
Cuyahoga No. 100841, 2014-Ohio-4680, in which this court affirmed Orr’s
convictions for aggravated murder, kidnapping, aggravated robbery, aggravated
burglary, and having a weapon while under disability. Orr also seeks relief under
Civ.R. 60(B)(5). For the following reasons, this court denies the application and
relief under Civ.R. 60(B).
In the early morning of October 10, 2011, two armed men entered a
house occupied by five people. One of those, a 15-year-old girl, testified that two
men pointed handguns in her face and asked if there was any money in the house.
Subsequently, the intruders shot and killed a man who was living in the house. A
mask found in the house after the incident contained Orr’s DNA.
Before trial, Orr made a pro se motion to exclude warrantless consent
waiver. After a trial to the bench, the judge found him guilty of the above offenses
and sentenced him to life without parole. Orr’s appellate counsel argued lack of
jurisdiction because of an improper jury waiver, failure of compulsory process,
sufficiency of the evidence, and manifest weight. This court also considered Orr’s
two supplemental pro se briefs in which he argued, inter alia, lack of jurisdiction
because there was no valid complaint, violation of his right to confrontation,
denial of a speedy trial, improperly inducing him to waive his right to a jury trial,
and prosecutorial misconduct.
Orr then timely filed an App.R. 26(B) application to reopen and
argued that his appellate counsel was ineffective for not arguing the improprieties
of a cheek swab taken for DNA identification. This court denied the application on
the basis of res judicata. Because Orr filed his own pro se brief, he could also have
included his DNA consent argument. State v. Orr, 8th Dist. Cuyahoga No. 100841,
2014-Ohio-5274.
Now Orr resurrects his DNA consent argument. He argues that
because he now has the transcript of pretrial proceedings, he can establish the
validity of the argument. The transcript indicates that early in the pretrial process
before the DNA swab, Orr “lawyered up.” Thus, he argues that as a corollary the
subsequent DNA swab must have been extracted through coercion and should have
been suppressed.
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. Orr filed
the present application approximately six years after this court’s decision. Thus,
it is untimely on its face.
Delays in obtaining the transcripts do not state good cause. State v.
Davenport, 8th Dist. Cuyahoga No. 106143, 2019-Ohio-4156. Moreover, a review of
the transcript indicates that Orr, pro se, was questioning the police officers about
“lawyering up” and the DNA swab. Thus, he knew about this argument, even
without the actual transcript pages. Orr does not establish good cause. 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. Thus,
the court denies the application as untimely. Moreover, the Supreme Court of Ohio
in State v. Twyford, 106 Ohio St.3d 176, 2005-Ohio-4380, 833 N.E.2d 289, held
that successive applications are not allowed.
Res judicata also properly bars this application. In State v.
Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204 (1992), the Supreme Court of Ohio
ruled that res judicata may bar a claim of ineffective assistance of appellate counsel
unless circumstances render the application of the doctrine unjust. Because Orr
filed his own appellate brief and raised his own assignments of error, because he had
pro se raised the issue in the trial court, and because he raised the issue in a previous
App.R. 26(B) application, it is not unjust to apply the doctrine and bar this
application.
To the extent that Orr seeks relief under Civ.R. 60(B)(5), any other
reason justifying relief from judgment, his motion is not well-founded. Civil
procedure remedies generally do not apply at the appellate level, and this court after
reviewing the material is not persuaded to grant relief.
Application denied.
MARY J. BOYLE, PRESIDING JUDGE
FRANK D. CELEBREZZE, JR., J., and
MICHELLE J. SHEEHAN, J., CONCUR