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

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[Cite as State v. Dunlap, 89 Ohio St.3d 277, 2000-Ohio-159.]

THE STATE OF OHIO, APPELLEE, v. DUNLAP, APPELLANT.
[Cite as State v. Dunlap (2000), 89 Ohio St.3d 277.]
Appellate procedure -- Application for reopening appeal from conviction based
on claim of ineffective assistance of appellate counsel -- Denial of
application for failing to show good cause for filing application more than
ninety days after journalization of court of appeals' decision affirming
conviction as required by App.R. 26(B) -- Judgment of court of appeals
affirmed.
(No. 99-2300 -- Submitted April 25, 2000 -- Decided July 12, 2000.)
APPEAL from the Court of Appeals for Hamilton County, No. C-930121.

Appellant, Timothy Dunlap, was convicted of the aggravated murder of
Belinda Bolanos and sentenced to death. Dunlap was also sentenced to prison for
aggravated robbery. The court of appeals affirmed the convictions and sentence.
State v. Dunlap (July 27, 1994), Hamilton App. No. C-930121, unreported, 1994
WL 388689. On direct appeal as of right, we also affirmed. State v. Dunlap
(1995), 73 Ohio St.3d 308, 652 N.E.2d 988, certiorari denied, Dunlap v. Ohio
(1996), 516 U.S. 1096, 116 S.Ct. 822, 133 L.Ed.2d 765. In October 1995, we
granted a stay of execution pending Dunlap's petition for certiorari to the United
States Supreme Court. State v. Dunlap (1995), 74 Ohio St.3d 1438, 655 N.E.2d

1321. In August 1996, we stayed execution of the death penalty, pending
disposition of Dunlap's petition for post-conviction relief of judgment. State v.
Dunlap (1996), 76 Ohio St.3d 1448, 668 N.E.2d 922.

Subsequently, the trial court dismissed Dunlap's petition for post-conviction
relief, and the court of appeals affirmed the trial court's judgment dismissing the
petition. State v. Dunlap (June 26, 1998), Hamilton App. No. C-970117,
unreported, 1998 WL 337041. Dunlap then appealed to our court, but we
dismissed the appeal. State v. Dunlap (1998), 83 Ohio St.3d 1472, 701 N.E.2d
380.

On July 21, 1999, Dunlap 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 that was decided in July 1994. On November 15,
1999, the court of appeals rejected Dunlap's application, in that he had "failed to
show good cause for filing his application more than ninety days after" the court of
appeals had journalized its judgment. Dunlap now appeals the court of appeals'
decision to reject his App.R. 26(B) application to reopen his 1994 appeal.
__________________

David H. Bodiker, Ohio Public Defender, and Lori Leon, Assistant Public
Defender, for appellant.
__________________

2

Per Curiam. We agree with the court of appeals that Dunlap's application
to reopen his appeal was untimely under App.R. 26(B). See, also, State v. Fox
(1998), 83 Ohio St.3d 514, 700 N.E.2d 1253; State v. Wickline (1996), 74 Ohio
St.3d 369, 371, 658 N.E.2d 1052, 1053.

Dunlap asserts, however, that he had "good cause" because the same
counsel, Elizabeth E. Agar, represented him in the original appeal to the court of
appeals and in 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, Randy D. Ashburn and Tracey A. Leonard, both
of whom are Assistant State Public Defenders, represented Dunlap in connection
with this case in October 1995. Also, Tracey Leonard and Richard J. Vickers
represented Dunlap before the court of appeals and our court in his 1998 appeal of
the denial of his petition for post-conviction relief. See State v. Dunlap (June 26,
1998), Hamilton App. No. C-970117, unreported, 1998 WL 337041. Given that
Dunlap had new counsel as of October 1995, Dunlap has not satisfactorily
explained or justified the delay from October 1995 until July 1999 when he filed
his App.R. 26(B) application. Thus, the court of appeals correctly rejected
Dunlap's application as untimely.

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

3

Judgment affirmed.

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

LUNDBERG STRATTON, J., dissents.
__________________

LUNDBERG STRATTON, J., dissenting. I respectfully dissent and would
grant defendant's App.R. 26(B) application to reopen his appeal.

4