[Cite as State v. Reddy, 2011-Ohio-2144.]



          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                                     No. 92924




                                     STATE OF OHIO

                                                  PLAINTIFF-APPELLEE

                                            vs.

                                    JOSEPH REDDY
                                                  DEFENDANT-APPELLANT



                                   JUDGMENT:
                               APPLICATION DENIED


                           Cuyahoga County Common Pleas Court
                                   Case No. CR-505854
                                Application for Reopening
                                    Motion No. 442674

RELEASE DATE: May 3, 2011
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                                      -i-

FOR APPELLANT

Joseph Reddy, Pro Se
Inmate No. 562-809
Trumbull Correctional Institution
P.O. Box 901, 5701 Burnett Road
Leavittsburg, Ohio 44430

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

By:   Pinkey S. Carr
      Mahmoud Awadallah
      Thorin O. Freeman
      Assistant County Prosecutors
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113




KENNETH A. ROCCO, J.:

      {¶ 1} On March 10, 2011, the applicant, Joseph Reddy, pursuant to

App.R. 26(B), applied to reopen this court’s judgment in State v. Reddy,

Cuyahoga App. No. 92924, 2010-Ohio-5759, in which this court modified

Reddy’s conviction from aggravated murder to murder, vacated his sentence,

and remanded for resentencing.      Reddy asserts that his appellate counsel
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was ineffective for not arguing that because the conviction for aggravated

murder was not supported by sufficient evidence, the case should have been

remanded for a new trial so that the lesser included offense of voluntary

manslaughter may have been considered.1 On March 17, 2011, the State of

Ohio filed its brief in opposition. For the following reasons, this court denies

the application to reopen.

       {¶ 2} 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. Reddy filed his application more than 100 days after this

court journalized its decision on November 24, 2010. Thus, it is untimely on

its face.

       {¶ 3} Reddy endeavors to show good cause by arguing that he and his

lawyer were unaware of the preclusive effect this court’s initial opinion would

have on subsequent appeals.             Originally, this court issued its decision on

August 26, 2010.          On remand, the trial court resentenced Reddy, and he

appealed.      State v. Reddy, Cuyahoga County Court of Appeals Case No.

       1
           The evidence at the bench trial showed that Reddy and his mother had a contentious and
violent relationship. Early on the morning of December 24, 2007, Reddy and his mother quarreled;
she ordered him to leave her house. When he refused to leave, she forced her way into his room and
threatened him with a dagger. Reddy punched her until she dropped the dagger, and then he choked
her to death.
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95814.       In this appeal Reddy’s lawyer raised the voluntary manslaughter

issue.       However, in December 2010, the attorney wrote to Reddy and

expressed his concern that the 95814 appeal may be limited to issues

concerning the resentencing only, and that the court might not consider the

voluntary manslaughter issue; thus, Reddy may have to pursue the matter as

a claim for ineffective assistance of appellate counsel.

         {¶ 4} Reddy still had two months to file his application timely from the

November 24, 2010 opinion. 2 His failure to do so renders his application

untimely.       As the Supreme Court of Ohio ruled in 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, the 90-day deadline for filing

must be strictly enforced. In those cases, the applicants argued that after

the court of appeals decided their cases, their appellate counsels continued to

represent them, and their appellate counsels could not be expected to raise

their own incompetence. Although the supreme court agreed with this latter

principle, it rejected the argument that continued representation provided

good cause.      In both cases, the court ruled that the applicants could not


         2
          On September 3, 2010, Reddy filed a pro se App.R. 26(A) motion for reconsideration.
This court granted the motion and vacated its August 26, 2010 opinion. The court then issued the
November 24, 2010 opinion. The two opinions are substantially the same, reaching the same result,
but the court did elaborate its reasoning for some of Reddy’s pro se arguments.
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ignore the 90-day deadline, even if it meant retaining new counsel or filing

the applications themselves. The court then reaffirmed the principle that

lack of effort, imagination, and ignorance of the law do not establish good

cause for complying with this fundamental aspect of the rule.

     {¶ 5} Moreover, res judicata properly 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. The courts have

repeatedly ruled that res judicata bars an application to reopen when the

appellant has filed a pro se brief. State v. Tyler, 71 Ohio St.3d 398,

1994-Ohio-8, 643 N.E.2d 1150, cert. denied (1995), 516 U.S. 829, 116 S.Ct. 98,

133 L.Ed.2d 53; State v. Boone (1996), 114 Ohio App.3d 275, 683 N.E.2d 67;

State v. Barnes (Mar. 13, 1986), Cuyahoga App. No. 50318, reopening

disallowed (Mar. 4, 1994), Motion No. 136464; State v. Williams (Oct. 31,

1996), Cuyahoga App. No. 69936, reopening disallowed (Apr. 24, 1997),

Motion No. 280441; and State v. Larkins (Oct. 8, 1987), Cuyahoga App. Nos.

52779 and 52780, reopening disallowed (Aug. 19, 1996), Motion No. 268671.
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      {¶ 6} In the present case, Reddy filed his own appellate brief on March

26, 2010, before oral argument and raised seven assignments of error upon

which this court ruled.     Reddy’s seventh assignment of error raised the

involuntary manslaughter issue: “Trial court abused its discretion in refusing

to consider lesser degree of homicide in violation of appellant’s right to due

process as guaranteed by the Fifth and Fourteenth Amendments of the

United States Constitution and Ohio Constitution.” This court rejected this

argument as follows: “Although Reddy argues specifically that the trial court

committed reversible error by failing to consider convicting him of voluntary

manslaughter, we have already found that the evidence in the record, while

insufficient for aggravated murder, was sufficient to convict Reddy of murder.

 We presume the trial court in reaching a verdict considered all lesser and

included offenses as well as inferior degree offenses unless the record shows

otherwise.” Res judicata properly bars Reddy’s argument because, he has

already raised it, and the court has considered it and overruled it.

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

_____________________________________
KENNETH A. ROCCO, JUDGE

MARY J. BOYLE, P.J., and
COLLEEN CONWAY COONEY, J., CONCUR
