[Cite as State v. Lashley, 2017-Ohio-8915.]



                            STATE OF OHIO, MAHONING COUNTY
                                  IN THE COURT OF APPEALS
                                        SEVENTH DISTRICT

STATE OF OHIO                                    )
                                                 )
        PLAINTIFF-APPELLEE                       )
                                                 )             CASE NO. 16 MA 0094
VS.                                              )
                                                 )                  OPINION
ELIJAH J. LASHLEY, SR.                           )                   AND
                                                 )              JUDGMENT ENTRY
        DEFENDANT-APPELLANT                      )

CHARACTER OF PROCEEDINGS:                        Application for Reconsideration
                                                 Application to Reopen

JUDGMENT:                                        Denied.

APPEARANCES:
For Plaintiff-Appellee                           Attorney Paul Gains
                                                 Mahoning County Prosecutor
                                                 Attorney Ralph Rivera
                                                 Assistant Prosecutor
                                                 21 West Boardman Street, 6th Floor
                                                 Youngstown, Ohio 44503-1426

For Defendant-Appellant                          Elijah J. Lashley, Sr., pro-se
                                                 #683-025
                                                 P.O. Box 8000
                                                 Conneaut, Ohio 44030

JUDGES:

Hon. Mary DeGenaro
Hon. Gene Donofrio
Hon. Cheryl L. Waite


                                                 Dated: November 7, 2017
[Cite as State v. Lashley, 2017-Ohio-8915.]
PER CURIAM.

        {¶1}     On July 20, 2017, Appellant Elijah J. Lashley, Sr. filed a pro-se
application for reconsideration, or alternatively application to reopen, our May 26,
2017 judgment in his direct appeal, State v. Lashley, 7th Dist. No. 16 MA 0094, 2017-
Ohio-4026. For the reasons below, his requests are denied.
        {¶2}     Lashley was convicted of two counts of kidnapping and two counts of
felonious assault, following a guilty plea, and was sentenced to an aggregate term of
13 years in prison. Id. at ¶ 1, 3-4, 9. On appeal, appointed counsel filed a brief
pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.E.2d 493 (1967),
and requested to withdraw. After independently reviewing the record, this court found
an error regarding consecutive sentences. Lashley at ¶ 2. Specifically, we held that
although the trial court made sufficient findings during the hearing, it failed to make
specific findings in the judgment entry, instead cutting and pasting the entirety of R.C.
2929.14(C)(4) into the entry. Id. Accordingly, we reversed the judgment of the trial
court and remanded the matter for the trial court to issue a nunc pro tunc sentencing
entry that includes the applicable specific consecutive sentence findings. Id.
        {¶3}     On July 20, 2017, Lashley filed a pro-se application for reconsideration,
or alternatively, application to reopen. The State filed a response five days later.
        {¶4}     With regard to Lashley's request for reconsideration, the test generally
applied is "whether the motion calls to the attention of the court an obvious error in its
decision, or raises an issue for consideration that was either not considered at all or
was not fully considered by the court when it should have been" Columbus v. Hodge,
37 Ohio App.3d 68, 523 N.E.2d 515 (10th Dist.1987), paragraph one of the syllabus.
        {¶5}     App.R. 26(A) provides that an application for reconsideration "shall be
made in writing no later than ten days after the clerk has both mailed to the parties
the judgment or order in question and made a note on the docket of the mailing as
required by App. R. 30(A)." App.R. 26(A)(1)(a).
        {¶6}     Our decision in Lashley's direct appeal was time-stamped on May 26,
2017. The Mahoning County Clerk of Courts entered the opinion and judgment on
the docket that same day, and the docket notation shows it was mailed to the parties
                                                                               -2-


on May 30, 2017. Accordingly, Lashley's July 20, 2017 application is untimely since it
was filed well beyond the 10 day time limit.
        {¶7}   We could construe the language in Lashley's application as a request
for leave to file a delayed application for reconsideration; his caption includes the
phrase "leave to file instanter requested." See State v. Wellington, 7th Dist. No. 14
MA 115, 2015-Ohio-2095, ¶ 5 (construing motion as a request for leave to file a
delayed application for reconsideration where title of the application was "Leave for
Motion for Reconsideration," and language in the argument section of application
indicated the appellant was seeking "leave for reconsideration.")
        {¶8}   App.R. 14(B) provides, "For good cause shown, the court, upon motion,
may enlarge or reduce the time prescribed by these rules or by its order for doing any
act, or may permit an act to be done after the expiration of the prescribed time." The
rule goes on to state: "Enlargement of time to file an application for reconsideration *
* * pursuant to App. R. 26(A) shall not be granted except on a showing of
extraordinary circumstances." App.R. 14(B). See also Wellington at ¶ 6.
        {¶9}   Lashley claims that he was never sent a copy of our judgment entry and
opinion in his direct appeal. However, the docket contradicts that; Lashley was sent a
copy in care of his attorney on May 30, 2017. Accordingly, Lashley has failed to
establish that extraordinary circumstances prevented him from filing a timely request
for reconsideration, and his request is denied.
        {¶10} With regard to the reopening request, App.R. 26(B)(1) provides that a
criminal defendant "may apply for reopening of the appeal from the judgment of
conviction and sentence, based on a claim of ineffective assistance of appellate
counsel. An application for reopening shall be filed in the court of appeals where the
appeal was decided within ninety days from journalization of the appellate judgment
unless the applicant shows good cause for filing at a later time."
        {¶11} Pursuant to App.R. 26(B)(2), an application for reopening shall contain,
inter alia:

               (c) One or more assignments of error or arguments in support of
                                                                              -3-


      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;
             (d) A sworn statement of the basis for the claim that appellate
      counsel's representation was deficient with respect to the assignments
      of error or arguments raised pursuant to division (B)(2)(c) of this rule
      and the manner in which the deficiency prejudicially affected the
      outcome of the appeal, which may include citations to applicable
      authorities and references to the record;
             (e) Any parts of the record available to the applicant and all
      supplemental affidavits upon which the applicant relies.
App.R. 26(B)(2)(c)-(e).
      {¶12} An applicant must 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). If the application is granted, the appellate court must appoint
counsel to represent the applicant if the applicant is indigent and unrepresented.
App.R. 26(B)(6)(a).
      {¶13} In order to show ineffective assistance of appellate counsel, the
applicant must meet the two-prong test outlined in Strickland v. Washington, 466 U.S.
668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Pursuant to Strickland, the applicant
must demonstrate deficient performance of counsel and resulting prejudice. Id. at
687. See also App.R. 26(B)(9).
      {¶14} Unlike his request for reconsideration, the application for reopening was
timely filed under the rule. However, Lashley fails to include a sworn statement of the
basis for the claim that appellate counsel's representation was deficient and the
manner in which the deficiency prejudicially affected the outcome of the appeal, nor
does he include any portions of the record upon which he relies.
      {¶15} Even if we were to look past these deficiencies, we still deny Lashley's
                                                                                -4-


request to reopen his appeal. Lashley appears to assert that appellate counsel was
ineffective for failing to challenge the fact that the sentencing proceedings took place
over two different dates. He argues this raises double jeopardy and due process
concerns.
       {¶16} As discussed in his direct appeal, when the matter was initially
convened for a sentencing hearing, the trial court imposed consecutive sentences,
but failed to make any findings to support them. Lashley at ¶ 9. However, before the
sentencing entry was issued, the trial court reconvened the parties for a hearing to
address the issue of consecutive sentences. Id. at ¶ 10. During the hearing, the trial
court made the requisite consecutive sentence findings, and only then, did it issue a
sentencing entry. Id. at ¶ 11-12.
       {¶17} Lashley's proposed assignment of error fails to demonstrate a genuine
issue as to whether he was deprived of the effective assistance of counsel on appeal.
A trial court speaks through its journal entries. State v. Brooke, 113 Ohio St.3d 199,
2007–Ohio–1533, 863 N.E.2d 1024, ¶ 47. When the trial court here reconvened the
parties for a hearing, it had not yet issued a judgment entry of sentence and therefore
had continuing jurisdiction over the matter. Accordingly, appointed appellate counsel
was not deficient for failing to raise this issue on appeal. For these reasons, Lashley's
application to reopen, along with his application for reconsideration, are denied.


DeGenaro, J., concurs.

Donofrio, J., concurs.

Waite, J., concurs.
