State v. Winstead - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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The State of Ohio, Appellee, v. Winstead, Appellant.
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[Cite as State v. Winstead (1996), _____ Ohio St.3d _____.]
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Appellate procedure -- Application for reopening appeal from
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judgment and conviction based on claim of ineffective
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assistance of appellate counsel -- Application denied when
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applicant fails to show good cause for failing to file his
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application within ninety days after journalization of the court
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of appeals' decision affirming the conviction, as required by
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App.R. 26(B).
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(No. 95-816 -- Submitted September 12, 1995 -- Decided January 10,
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1996.)
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Appeal from the Court of Appeals for Hamilton County, No. C-
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940046.
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Appellant, Donald Winstead, was convicted of aggravated burglary
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and theft, with prior offense specifications. The conviction was affirmed on
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appeal. State v. Winstead (Sept. 28, 1994), Hamilton App. No. C-940046,
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unreported, 1994 WL 525535. We dismissed the appeal on March 1, 1995.
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State v. Winstead (1995), 71 Ohio St. 3d 1477, 645 N.E. 2d 1257. It is
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undisputed appellant filed an application to reopen his appeal pursuant to
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App.R. 26(B) on December 28, 1994, claiming ineffective assistance of

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appellate counsel. He alleges he based his claim of ineffective assistance of
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appellate counsel on appellate counsel's failure to raise the issue of
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prosecutorial misconduct during closing arguments. On January 6, 1995,
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appellant filed a motion to rule the App. R. 26(B) application timely filed,
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or that good cause for a day's delay in timely filing was established, because
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the overnight courier that appellant's counsel had used failed to deliver the
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application before the deadline for filing expired. On April 6, 1995, the
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Court of Appeals for Hamilton County ruled that "good cause" had not been
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established and denied the application for reopening. Appellant then
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appealed to this court.
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Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip
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R. Cummings, Assistant Prosecuting Attorney, for appellee.
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David H. Bodiker, Ohio Public Defender, and Hyrum J. Mackay,
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Assistant State Public Defender, for appellant.
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Per Curiam. The decision of the court of appeals is affirmed. We
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agree that a courier's delay in delivery is not "good cause" for accepting an
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App.R. 26(B) application for reopening that is untimely filed. Moreover,

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there is no denial of due process or equal protection in applying to this
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appellant a rule applicable to all appellants.
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Judgment affirmed.
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MOYER, C.J., DOUGLAS, WRIGHT, RESNICK, F.E. SWEENEY, PFEIFER
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and COOK, JJ., concur.
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