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

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The State of Ohio, Appellee, v. Everette, Appellant.
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[Cite as State v. Everette (1996), _____ Ohio St.3d _____.]
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Appellate procedure -- App.R. 26(B) -- Application for reopening
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appeal from judgment and conviction based on claim of
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ineffective assistance of appellate counsel -- Application
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denied when not timely filed.
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(No. 95-1557--Submitted October 24, 1995--Decided January 10,
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1996.)
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Appeal from the Court of Appeals for Montgomery County, No.
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13440.
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Appellant, Thomas E. Everette, Jr., was convicted of felonious assault
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and aggravated robbery, each with a gun specification. He was sentenced
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accordingly. The court of appeals affirmed the convictions. State v.
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Everette (Aug. 6, 1993), Montgomery App. No. 13440, unreported.
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On May 31, 1995, appellant filed with the court of appeals an
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application titled, "Application for Reconsideration/Reopening Pursuant to
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Rule 26 of Appellate Procedure." Since the appellant argued that his
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appellate counsel was ineffective and attempted to offer a good-cause
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reason for his untimely filing, the court of appeals considered his

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application as one for reopening pursuant to App.R. 26(B). In the
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application, appellant stated as good cause for failure to file the application
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within ninety days after journalization of the appellate judgment sought to
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be reopened, as required by App.R. 26(B)(1), that he had "great difficulties"
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in finding out that his conviction had been affirmed on appeal and "great
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difficulties" in obtaining a trial transcript. The court of appeals found that
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appellant had filed a pro se appeal to this court on October 22, 1993,
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showing that he did have knowledge of the August 6, 1993 judgment
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affirming his conviction, and that he failed to substantiate his claim of
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difficulty in obtaining a transcript. It, therefore, denied the application to
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reopen as untimely. This appeal followed.
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Thomas E. Everette, Jr., pro se.
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Per Curiam. We affirm the decision of the court of appeals for the
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reasons stated in its judgment entry.
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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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