[Cite as Olmsted Falls v. Buckwald, 2011-Ohio-6174.]




                Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 94350




                           CITY OF OLMSTED FALLS
                                                             PLAINTIFF-APPELLEE

                                                       vs.

                               RALPH D. BUCKWALD
                                                             DEFENDANT-APPELLANT




                                     JUDGMENT:
                                 APPLICATION DENIED


                                     Berea Municipal Court
                            Case Nos. 08TRC04655 and 08CRB01334
                                   Application for Reopening
                                       Motion No. 445265


        RELEASE DATE: December 2, 2011
FOR APPELLANT

Ralph D. Buckwald
Inmate #0121730
Cuyahoga County Jail
P. O. Box 5600
Cleveland, OH 44101

ATTORNEY FOR APPELLEE

Gregory M. Sponseller
Director of Law
City of Berea
11 Berea Commons
Berea, OH 44017




MARY EILEEN KILBANE, A.J.:

       {¶ 1} On June 13, 2011, the applicant, Ralph Buckwald, pursuant to App.R. 26(B),

applied to reopen this court’s judgment in City of Olmsted Falls v. Ralph Buckwald (Dec. 9,

2009), Cuyahoga App. No. 94350 in which this court dismissed Buckwald’s appeal as

untimely.1 Buckwald who represented himself on appeal argues that his appeal should be

reopened because (1) he timely tendered his appellate papers to the clerk of the Berea

Municipal Court, but the clerk rejected them as incomplete, and (2) he should not have been

convicted of a motor vehicle offense because he was riding a bicycle at the time. For the

following reasons, this court denies his application to reopen.

       1
         On September 23, 2009, Buckwald pleaded no contest to driving under the influence, and
the court sentenced him to ten days in jail, one-year driver’s license suspension, and a $500 fine
suspended. Buckwald filed his appeal on November 30, 2009, without seeking leave to file a
delayed appeal.
       {¶ 2} First, res judicata bars this application. See, generally, State v. Perry (1967),

10 Ohio St.2d 175, 226 N.E.2d 104. Res judicata prevents repeated attacks on a final

judgment and applies to all issues which were or might have been litigated. In State v.

Murnahan (1992), 63 Ohio St.3d 60, 584 N.E.2d 1204, the supreme court ruled that res

judicata may bar a claim of ineffective assistance of appellate counsel unless circumstances

render the application of the doctrine unjust.

       {¶ 3} In the present case, Buckwald made the same argument on timeliness in a

motion for reconsideration filed on December 16, 2009, and in an addendum filed on

December 18, 2009, as he does in the present application to reopen. This court rejected that

argument in February 2010, by denying the motion for reconsideration under Appellate Rules

4, 5, and 26. This court should not and will not reconsider its ruling after the matter has been

fully and fairly presented.

       {¶ 4} Moreover, an application to reopen pursuant to App.R. 26(B) is the wrong

remedy. Subsection (B)(1) states this remedy’s scope: “A defendant in a criminal case may

apply for reopening of the appeal from the judgment of conviction and sentence, based on a

claim of ineffective assistance of appellate counsel.” Because Buckwald represented himself

in the appeal, he is now precluded from arguing ineffective assistance of appellate counsel.

State v. Boone (1996), 114 Ohio App.3d 275, 683 N.E.2d 67; State v. Vines (Sept. 14, 1989),

Cuyahoga App. No. 55693 and (Nov. 3, 2000), Cuyahoga App. No. 78691, reopening

disallowed (June 5, 2003), Motion No. 347277; State v. Smith (Dec. 10, 2001), Cuyahoga

App. No. 79292, reopening disallowed (Mar. 8, 2002), Motion No. 336058; and State v.
Jackson, Cuyahoga App. No. 80118, 2002-Ohio-5461. As the United States Supreme Court

noted in Faretta v. California (1975), 422 U.S. 806, 834, n.46, 95 S.Ct. 2525, “a defendant

who elects to represent himself cannot thereafter complain that the quality of his own defense

amounted to a denial of ‘effective assistance of counsel.’”

       {¶ 5} Finally, App.R. 26(B)(1) and (2)(b) require applications claiming ineffective

assistance of appellate counsel to be filed within 90 days from journalization of the decision

unless the applicant shows good cause for filing at a later time. The June 2011 application

was filed approximately a year and one-half after this court’s decision. Thus, it is untimely

on its face. However, Buckwald offers no explanation for his untimely filing of the

application to reopen. He only repeats his argument that he timely tendered the original

notice of appeal, but the municipal court clerk refused to file it for failure to tender the filing

fee. That does not satisfy the good cause requirement under App.R. 26(B). State v. LaMar,

102 Ohio St.3d 467, 2004-Ohio-3976, 812 N.E.2d 970, and State v. Gumm, 103 Ohio St.3d

162, 2004-Ohio-4755, 814 N.E.2d 861.

       {¶ 6} Accordingly, this court denies the application to reopen.


MARY EILEEN KILBANE, ADMINISTRATIVE JUDGE

MARY J. BOYLE, J., and
SEAN C. GALLAGHER, J., CONCUR
