State v. Winstead

[This opinion has been published in Ohio Official Reports at 

74 Ohio St.3d 277

.]




           THE STATE OF OHIO, APPELLEE, v. WINSTEAD, APPELLANT.
                      [Cite as State v. Winstead, 

1996-Ohio-52

.]
Appellate procedure—Application for reopening appeal from judgment and
        conviction based on claim of ineffective assistance of appellate counsel—
        Application denied when applicant fails to show good cause for failing to
        file his application within ninety days after journalization of the court of
        appeals’ decision affirming the conviction, as required by App.R. 26(B).
   (No. 95-816—Submitted September 12, 1995—Decided January 10, 1996.)
     APPEAL from the Court of Appeals for Hamilton County, No. C-940046.
                                  __________________
        {¶ 1} Appellant, Donald Winstead, was convicted of aggravated burglary
and theft, with prior offense specifications. The conviction was affirmed on appeal.
State v. Winstead (Sept. 28, 1994), Hamilton App. No. C-940046, unreported, 

1994 WL 525535

. We dismissed the appeal on March 1, 1995. State v. Winstead (1995),

71 Ohio St. 3d 1477

, 

645 N.E. 2d 1257

. It is undisputed appellant filed an
application to reopen his appeal pursuant to App.R. 26(B) on December 28, 1994,
claiming ineffective assistance of appellate counsel. He alleges he based his claim
of ineffective assistance of appellate counsel on appellate counsel’s failure to raise
the issue of prosecutorial misconduct during closing arguments. On January 6,
1995, appellant filed a motion to rule the App. R. 26(B) application timely filed, or
that good cause for a day’s delay in timely filing was established, because the
overnight courier that appellant’s counsel had used failed to deliver the application
before the deadline for filing expired. On April 6, 1995, the Court of Appeals for
Hamilton County ruled that “good cause” had not been established and denied the
application for reopening. Appellant then appealed to this court.
                                  __________________
                             SUPREME COURT OF OHIO




       Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R.
Cummings, Assistant Prosecuting Attorney, for appellee.
       David H. Bodiker, Ohio Public Defender, and Hyrum J. Mackay, Assistant
State Public Defender, for appellant.
                              __________________
       Per Curiam.
       {¶ 2} The decision of the court of appeals is affirmed. We agree that a
courier’s delay in delivery is not “good cause” for accepting an App.R. 26(B)
application for reopening that is untimely filed. Moreover, there is no denial of due
process or equal protection in applying to this appellant a rule applicable to all
appellants.
                                                                 Judgment affirmed.
       MOYER, C.J., DOUGLAS, WRIGHT, RESNICK, F.E. SWEENEY, PFEIFER and
COOK, JJ., concur.
                              __________________




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