[Cite as State v. Christian, 2018-Ohio-2764.]



             IN THE COURT OF APPEALS OF OHIO
                              SEVENTH APPELLATE DISTRICT
                                  JEFFERSON COUNTY

                                           STATE OF OHIO,

                                           Plaintiff-Appellee,

                                                    v.

                                        WAYNE CHRISTIAN,

                                        Defendant-Appellant.


                          OPINION AND JUDGMENT ENTRY
                                 Case No. 16 JE 0030


                                       Motion for Reconsideration

                                          BEFORE:
                   Cheryl L. Waite, Gene Donofrio, Carol Ann Robb, Judges.


                                                JUDGMENT:
                                                 Overruled.

Atty. Jane M. Hanlin, Jefferson County Prosecutor
Jefferson County Justice Center, 16001 State Route 7, Steubenville, Ohio 43952, for
Plaintiff-Appellee

Wayne Christian, Pro se, #521-627
Trumbull Correctional Institution, P.O. Box 901, Leavittsburg, Ohio 44430.


                                          Dated: June 28, 2018



PER CURIAM.
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       {¶1}   On February 27, 2018, Appellant Wayne Christian filed an application for

reconsideration of our December 27, 2017 decision in State v. Christian, 7th Dist. No.

16 JE 0030, 2017-Ohio-9420. We affirmed the judgment of the Jefferson County Court

of Common Pleas denying his motion for declaratory judgment. The state did not file a

brief in opposition to the application.

       {¶2}   Appellant filed a notice of appeal with the Ohio Supreme Court on

February 2, 2018 seeking review of our decision. We nonetheless retain jurisdiction to

consider the motion for reconsideration pursuant to Sup. Ct. Prac. R. 7.01(D).

       {¶3}   In his motion for declaratory judgment, Appellant argued that R.C.

2903.11(B)(1), the Ohio statute criminalizing sexual conduct between a minor and a

person who has failed to disclose their status as a person who tested positive for the

human immunodeficiency virus (“HIV”), violates the equal protection clauses of the

United States and Ohio Constitutions.      We affirmed the judgment of the trial court

denying the motion because we held that statutes directed toward the protection of

minors are based on a legitimate state interest. Christian, supra at ¶ 15. We further

held that the existence of other sexually transmitted diseases (“STDs”) that may have

serious public health and safety consequences does not eliminate the rational

relationship between the classification and the goal of protecting minors. Id. at ¶ 16.

       {¶4}   App.R. 26, which provides for the filing of an application for

reconsideration in this Court, includes no guidelines to be used in the determination of

whether a decision is to be reconsidered. Deutsche Bank Natl. Trust Co. v. Knox, 7th

Dist. No. 09-BE-4, 2011-Ohio-421, ¶ 2, citing Matthews v. Matthews (1981), 5 Ohio

App.3d 140, 143, 450 N.E.2d 278. The test generally applied is whether the motion for




Case No. 16 JE 0030
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reconsideration calls to the attention of the court an obvious error in its decision or

raises an issue for our consideration that was either not considered or not fully

considered in the direct appeal. Id.

      {¶5}     An application for reconsideration is not designed for use in instances

where a party simply disagrees with the conclusions reached and the logic used by an

appellate court. Deutsche Bank at ¶ 2, citing State v. Owens, 112 Ohio App.3d 334,

336, 678 N.E.2d 956 (1996). Rather, App.R. 26 provides a mechanism by which a party

may prevent a miscarriage of justice that could arise when an appellate court makes an

obvious error or renders an unsupportable decision under the law. Id.

      {¶6}     Initially, we must review the timeliness of the application.    App.R. 26

provides a ten-day time limit within which to seek reconsideration of an appellate

decision.    App.R. 26(A).   Our decision was filed with the clerk and announced on

December 27, 2017. Thus, Appellant was required to file by Monday, January 8, 2018.

See App.R. 14(A). Appellant contends that he can establish good cause for his failure

to timely file because he did not receive a copy our decision until a month after it was

issued. However, App.R. 14, captioned: “Computation and Extension of Time,” reads,

in pertinent part, “[e]nlargement 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).     The standard used to show “extraordinary

circumstances” is intended to be greater than that used to establish “good cause.”

App.R. 14 1994 Staff Notes.            Appellant has not demonstrated extraordinary

circumstances here.




Case No. 16 JE 0030
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       {¶7}   We may also enlarge the ten-day time limit for filing a motion for

reconsideration if the motion raises an issue of sufficient importance to warrant an

exception to the rule.     Rice v. Rice, 7th Dist. No. 2001-CO-28, 2002-Ohio-5032.

However, the application neither reveals an error nor raises an argument that was not

fully considered on direct appeal.     Appellant simply restates the argument he has

already advanced: that the statute at issue is arbitrary because it treats HIV positive

individuals differently than individuals capable of transmitting equally dangerous STDs

to minors.    Appellant fails to understand that the legislature is permitted to treat a

particular class differently, so long as the treatment is related to the purpose of the law.

The Ohio Supreme Court addressed the very same argument in State v. Battista, 151

Ohio St.3d 584, 2017-Ohio-8304, 91 N.E.2d 724, writing:

       Batista asks the court to weigh the wisdom of the legislature's policy

       choices, but that is beyond our authority.         Because there is some

       conceivable basis to support the legislative arrangement, the statute does

       not violate equal protection.    Batista's argument that no rational basis

       exists to require only HIV positive individuals to disclose their status while

       not requiring the same of individuals with Hepatitis C, for example, is

       misplaced. We are not faced with a statute that requires individuals to

       disclose their Hepatitis C diagnosis or other contagious infection. We

       leave that policy decision to the General Assembly. And the existence of

       other sexually transmitted diseases that may have serious public health

       and safety consequences does not eliminate the rational relationship

       between the classification here─individuals with knowledge of their HIV-




Case No. 16 JE 0030
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       positive status who fail to disclose that status to sexual partners─and the

       goal of curbing HIV transmission.

Id. at ¶ 24.

       {¶8}    In summary, the application was untimely filed, and Appellant has failed to

identify extraordinary circumstances. Even if we were to excuse the procedural defect,

we have fully considered Appellant’s argument and Appellant has raised no obvious

error in our earlier decision. Accordingly, Appellant’s application is overruled.



JUDGE CHERYL L. WAITE


JUDGE GENE DONOFRIO


JUDGE CAROL ANN ROBB




                                 NOTICE TO COUNSEL

       This document constitutes a final judgment entry.




Case No. 16 JE 0030
