[Cite as State v. Pluhar, 2016-Ohio-1465.]


                 Court of Appeals of Ohio
                                   EIGHTH APPELLATE DISTRICT
                                      COUNTY OF CUYAHOGA


                                  JOURNAL ENTRY AND OPINION
                                          No. 102012



                                              STATE OF OHIO

                                                         PLAINTIFF-APPELLEE

                                                   vs.

                                             TIMOTHY PLUHAR

                                                         DEFENDANT-APPELLANT




                                             JUDGMENT:
                                         APPLICATION DENIED



                               Cuyahoga County Court of Common Pleas
                                     Case No. CR-14-584753-A
                                     Application for Reopening
                                         Motion No. 490195

        RELEASE DATE: April 6, 2016
FOR APPELLANT

Timothy Pluhar, pro se
S.C.C. Hocking Correctional Facility
16759 Snake Hollow Road
P.O. Box 59
Nelsonville, Ohio 45764-0059


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
By: Denise J. Salerno
       Daniel T. Van
Assistant County Prosecutors
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., J.:

         {¶1} Timothy Pluhar has filed a timely application for reopening pursuant to App.R.

26(B).    Pluhar is attempting to reopen the appellate judgment that was rendered in State v.

Pluhar, 8th Dist. Cuyahoga No. 101289, 2015-Ohio-3344, that affirmed his plea of guilty to the

offenses of rape, tampering with evidence, and sexual battery and the sentence imposed by the

trial court.   We decline to reopen Pluhar’s original appeal.

         {¶2} In order to establish a claim of ineffective assistance of appellate counsel, Pluhar is

required to establish that the performance of his appellate counsel was deficient and the

deficiency resulted in prejudice. Strickland v. Washington, 466 U.S. 688, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), cert. denied,

497 U.S. 1011, 110 S.Ct. 3258, 111 L.Ed.2d 767 (1990).

         {¶3} In Strickland, the United States Supreme Court held that a court’s scrutiny of an

attorney’s work must be highly deferential.      The court further stated that it is all too tempting

for a defendant to second-guess his attorney after conviction and that it would be too easy for a

court to conclude that a specific act or omission was deficient, especially when examining the

matter in hindsight.    Thus, a court must indulge a strong presumption that counsel’s conduct

falls within the wide range of reasonable professional assistance; that is, the defendant must

overcome the presumption that, under the circumstances, the challenged action might be

considered sound trial strategy. Strickland.

         {¶4} Herein, Pluhar raises two proposed assignments of error in support of his claim of

ineffective assistance of appellate counsel. Pluhar, through his two proposed assignments of

error, argues that his convictions for the offenses of rape, tampering with evidence, and sexual
battery were time-barred because the six-year statute of limitations, in effect at the time of the

commission of the offenses, had expired.

        {¶5} Effective March 9, 1999, the General Assembly amended R.C. 2901.13 to provide

that the statute of limitations for certain felony offenses, including rape (R.C. 2907.02) and

sexual battery (R.C. 2907.03), was 20 years. The legislative history to the amendment states

that:

        Section 2901.13 of the Revised Code, as amended by this act, applies to an
        offense committed prior to the effective date of this act if prosecution for that
        offense was not barred under section 2901.13 of the Revised Code as it existed on
        the day prior to the effective date of this act.

        {¶6} Thus, if the statute of limitations had not expired by March 8, 1999, an offender is

subject to prosecution under the amended version of R.C. 2901.13. See State v. Herron, 8th

Dist. Cuyahoga No. 91362, 2009-Ohio-2128.             Courts throughout the state of Ohio have

uniformly upheld the constitutionality of this retroactive extension of the statute of limitations.

State v. Steele, 155 Ohio App.3d 659, 2003-Ohio-7103, 802 N.E.2d 1127 (1st Dist.).

        {¶7} In the case sub judice, the offenses of rape and sexual battery occurred between June

20, 1998, and August 4, 1999. Thus, the applicable statute of limitations to the offenses of rape

and sexual battery is 20 years.

        {¶8} In addition, the plea of guilty entered by Pluhar waived any claim that the conviction

for the offense of tampering with evidence was time-barred by a statute of limitations of six

years. State v. Brown, 43 Ohio App.3d 39, 539 N.E.2d 1159 (1st Dist.1988); State v. Keinath,

6th Dist. Ottawa No. OT-11-032, 2012-Ohio-5001. Pluhar’s two proposed assignments of error

lack merit, and we find that he has failed to establish a claim of ineffective assistance of appellate

counsel.
     {¶9} Application denied.




FRANK D. CELEBREZZE, JR., JUDGE

TIM McCORMACK, P.J., and
ANITA LASTER MAYS, J., CONCUR
