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

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[Cite as State v. Ballew, 89 Ohio St.3d 204, 2000-Ohio-134.]

THE STATE OF OHIO, APPELLEE, v. BALLEW, APPELLANT.
[Cite as State v. Ballew (2000), 89 Ohio St.3d 204.]
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 establish 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) -- Court of appeals' rejection of application affirmed.
(No. 99-2146 -- Submitted April 10, 2000 -- Decided June 21, 2000.)
APPEAL from the Court of Appeals for Hamilton County, No. C-920576.

Appellant, Tyrone Ballew, was convicted of the aggravated murder of
Donald Hill and sentenced to death. Ballew was also sentenced to prison for
kidnapping and aggravated burglary. The court of appeals affirmed the
convictions and sentence. State v. Ballew (Aug. 2, 1995), Hamilton App. No. C-
920576, unreported, 1995 WL 453044. On direct appeal as of right, we also
affirmed. State v. Ballew (1996), 76 Ohio St.3d 244, 667 N.E.2d 369, certiorari
denied, Ballew v. Ohio (1997), 519 U.S. 1065, 117 S.Ct. 704, 136 L.Ed.2d 625.
In October 1996, we granted a stay of execution recognizing that Ballew had filed
a petition for post-conviction relief and intended to file for certiorari. State v.
Ballew (1996), 77 Ohio St.3d 1426, 670 N.E.2d 1361.

On March 17, 1997, the trial court denied Ballew's post-conviction
petition, and the court of appeals affirmed the trial court's judgment. State v.
Ballew (Mar. 6, 1998), Hamilton App. No. C-970313, unreported, 1998 WL
95397. We then declined to accept the appeal. State v. Ballew (1998), 82 Ohio
St.3d 1441, 695 N.E.2d 264. On August 25, 1998, we revoked the stay of
execution. State v. Ballew (1998), 83 Ohio St.3d 1408, 698 N.E.2d 434.

On June 7, 1999, Ballew filed an App.R. 26(B) application to reopen his
appeal in the court of appeals, asserting that he had received ineffective assistance
of counsel in his original appeal decided in August 1995. In October 1999, the
court of appeals rejected that application as untimely, and Ballew now appeals
that decision.
__________________

Michael K. Allen, Hamilton County Prosecuting Attorney, and Ronald W.
Springman, Jr., Assistant Prosecuting Attorney, for appellee.

David J. Graeff, for appellant.
__________________

Per Curiam. We affirm the judgment of the court of appeals. "Under
App.R. 26(B)(2)(b), an application for reopening requires `a showing of good
cause for untimely filing if the application is filed more than ninety days after
journalization of the appellate judgment.' " State v. Wickline (1996), 74 Ohio
St.3d 369, 371, 658 N.E.2d 1052, 1053. Ballew's application to reopen his appeal
was, as he concedes, untimely.

Ballew asserts, however, that he had "good cause" because the same
counsel, Robert R. Hastings, Jr., represented him in the original appeal to the
court of appeals and this court. Counsel cannot be expected to argue his or her
own ineffectiveness. State v. Lentz (1994), 70 Ohio St.3d 527, 529-530, 639
N.E.2d 784, 785. However, different counsel, Gary W. Crim, began to represent
Ballew in connection with this case in October 1996. Crim also represented
Ballew before the court of appeals and this court in his 1998 appeal of the denial
of his petition for post-conviction relief. See State v. Ballew (Mar. 6, 1998),
Hamilton App. No. C-970313, unreported, 1998 WL 95397. Ballew has not
explained or justified the delay from October 1996 until June 1999 in filing his
App.R. 26(B) application. Thus, the court of appeals correctly rejected Ballew's
application as untimely.

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Accordingly, the judgment of the court of appeals is affirmed.
Judgment affirmed.

MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
LUNDBERG STRATTON, JJ., concur.

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