[Cite as State v. Saunders, 2012-Ohio-4586.]




                     Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA



                                 JOURNAL ENTRY AND OPINION
                                               No. 96643




                                       STATE OF OHIO
                                                         PLAINTIFF-APPELLEE

                                                   vs.

                               NATHANIEL SAUNDERS
                                                         DEFENDANT-APPELLANT


                                      JUDGMENT:
                                  APPLICATION DENIED


                             Cuyahoga County Common Pleas Court
                        Case Nos. CR-536994, CR-541910 and CR-543492
                                   Application for Reopening
                                      Motion No. 454120

             RELEASE DATE:                 October 2, 2012
                                  -i-




ATTORNEY FOR APPELLANT

Michael J. Gordillo
Gordillo & Gordillo, LLC
1370 Ontario Street, Suite 2000
Cleveland, Ohio 44113

Nathaniel D. Saunders, Pro Se
Inmate #600-737
878 Coitsville-Hubbard Road
Youngstown, Ohio 44505


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

Vincent I. Pacetti
James M. Price
Assistant County Prosecutors
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, A.J.:

       {¶1} In State v. Saunders, Cuyahoga C.P. Nos. CR-536994, CR-541910, and

CR-543492, applicant, Nathaniel Saunders, pled guilty to and was convicted of two counts

of robbery, assault, and attempted escape.   This court affirmed the judgment in Case No.

CR-536994 (two counts of robbery) and dismissed as untimely the appeals from Case Nos.

CR-541910 and CR-543492 in State v. Saunders, 8th Dist. No. 96643, 2012-Ohio-104.

The Supreme Court of Ohio denied Saunders’s motion for delayed appeal. State v.

Saunders, 132 Ohio St.3d 1408, 2012-Ohio-2454, 968 N.E.2d 491.

       {¶2} Saunders has filed with the clerk of this court a timely application for

reopening.   He asserts that he was denied the effective assistance of appellate counsel

because the notices of appeal in two of the underlying cases were not timely filed.     We

deny the application for reopening.    As required by App.R. 26(B)(6), the reasons for our

denial follow.

       {¶3} Having reviewed the arguments set forth in the application for reopening in

light of the record, we hold that Saunders has failed to meet his burden to demonstrate that

“there is a genuine issue as to whether the applicant was deprived of the effective

assistance of counsel on appeal.”     App.R. 26(B)(5).   In State v. Spivey, 84 Ohio St.3d

24, 1998-Ohio-704, 701 N.E.2d 696, the Supreme Court specified the proof required of an
applicant.

       In State v. Reed (1996), 74 Ohio St.3d 534, 535, 660 N.E.2d 456, 458, we
       held that the two-prong analysis found in Strickland v. Washington
       (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, is the appropriate
       standard to assess a defense request for reopening under App.R.
       26(B)(5). [Applicant] must prove that his counsel were deficient for
       failing to raise the issues he now presents, as well as showing that had he
       presented those claims on appeal, there was a ‘reasonable probability’
       that he would have been successful. Thus [applicant] bears the burden
       of establishing that there was a ‘genuine issue’ as to whether he has a
       ‘colorable claim’ of ineffective assistance of counsel on appeal. Id. at
       25. Applicant cannot satisfy either prong of the Strickland test. We must,
       therefore, deny the application.

       {¶4} Saunders initially filed his application on February 28, 2012.       The state

correctly observes, however, that the application does not contain “[o]ne or more

assignments of error or arguments in support of assignments of error that previously were

not considered on the merits in the case by any appellate court or that were considered on

an incomplete record because of appellate counsel’s deficient representation.”      App.R.

26(B)(2)(c).   The absence of assignments of error is dispositive.   “It is well established

that the failure to state assignments of error is a sufficient ground for denying an

application for reopening. See, e.g., State v. Fryerson, 8th Dist. No. 91960,

2009-Ohio-4227, reopening disallowed, 2010-Ohio-1852, ¶ 8.”      State v. Bartoe, 8th Dist.

No. 95286, 2012-Ohio-154, ¶ 3.

       {¶5} Although Saunders does not formally assert an assignment of error, he does

argue that he was denied the effective assistance of appellate counsel because appellate

counsel did not file timely notices of appeal in Case Nos. CR-CR-541910 and CR-543492.
 We take judicial notice, 1 however, that Saunders filed an appeal from Case Nos.

CR-541910 and CR-543492, 8th Dist. No. 98379. This court granted Saunders’s motion

for leave to file delayed appeal in 8th Dist. No. 98379 and that appeal remains pending.

The application for reopening filed on February 28, 2012, is, therefore, moot.

         {¶6} Saunders also filed an application for reopening in this appeal on April 12,

2012.        “‘[T]here is no right to file successive applications for reopening’ under App.R.

26(B).       State v. Williams, 99 Ohio St.3d 179, 2003-Ohio-3079, 790 N.E.2d 299, ¶ 12.”

State v. Twyford, 106 Ohio St.3d 176, 2005-Ohio-4380, 833 N.E.2d 289, ¶ 6. As a

consequence, we must deny Saunders’s second application for reopening.

         {¶7} We also note that, in his first proposed assignment of error in the second

application, Saunders asserts that his appellate counsel was ineffective because he did not

file timely notices of appeal in Case Nos. CR-541910 and CR-543492. As has been

discussed above, that assignment of error does not provide a basis for reopening.

         {¶8} Likewise, in his second proposed assignment of error, Saunders contends that

his counsel was ineffective because counsel did not communicate with Saunders regarding

his appeal.       Reliance on matters outside the record —   i.e., the extent of communication

between counsel and Saunders — does not provide a basis for reopening.         See, e.g., State

v. Alsip, 8th Dist. No. 93105, 2011-Ohio-303 (reliance on matters outside the record when

the record does not reflect communication with appellate counsel does not provide a basis


         1
          See State ex rel. Nelson v. Russo, 89 Ohio St.3d 277, 2000-Ohio-141, 729 N.E.2d
1181 (extrinsic evidence outside the record may prove that a case is moot).
for reopening).

      {¶9} Accordingly, the application for reopening is denied.




PATRICIA ANN BLACKMON, ADMINISTRATIVE JUDGE

MELODY J. STEWART, J., and
SEAN C. GALLAGHER, J., CONCUR
