[Cite as State v. Davenport, 2019-Ohio-4156.]

                               COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA

STATE OF OHIO,                                    :

                 Plaintiff-Appellee,              :
                                                           No. 106143
                 v.                               :

CHARLES H. DAVENPORT,                             :

                 Defendant-Appellant.             :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: APPLICATION DENIED
                 RELEASED AND JOURNALIZED: October 9, 2019


                           Cuyahoga County Court of Common Pleas
                                 Case No. CR-15-600942-A
                                 Application for Reopening
                                     Motion No. 528515


                                            Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Gregory J. Ochocki, Assistant Prosecuting
                 Attorney, for appellee.

                 Charles H. Davenport, pro se.

MARY J. BOYLE, P.J.:

                   On May 17, 2019, the applicant, Charles H. Davenport, pursuant to

App.R. 26(B) and State v. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204 (1992),

applied to reopen this court’s judgment in State v. Davenport, 8th Dist. Cuyahoga
No. 106143, 2018-Ohio-2933, in which this court affirmed his convictions for

aggravated murder and aggravated arson. Davenport claims that his appellate

counsel was ineffective for not arguing that the trial court abused its discretion in

imposing court costs when Davenport was obviously indigent. On June 19, 2019,

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

denies the application to reopen.

               On November 4, 2015, Sparks threatened Davenport with a gun,

telling Davenport he would shoot him, if he kept coming towards Sparks’s home.

Davenport replied that he would burn Sparks in his sleep if he pulled a gun on him

again. In the early morning of November 5, 2015, Davenport set fire to Sparks’s

house, and Sparks died of smoke inhalation. Davenport confessed to the police at

the scene of the crime.

               The grand jury indicted Davenport for two counts of aggravated

murder, one count of murder, two counts of aggravated arson, and one count of

felonious assault. Defense counsel moved to appoint an independent psychological

expert to assist him in representing Davenport who had a history of psychiatric

and/or psychological treatment. Over the state’s objection, the trial court granted

the motion. After reviewing Davenport’s mental health and medical history, alcohol

and drug history, legal history, and psychological state, the state and defense counsel

stipulated to the expert’s opinion that Davenport was competent to stand trial.

However, defense counsel cautioned that the expert opined only on competency; he

did not address the issue of sanity.
               After a bench trial, the judge found Davenport guilty of all counts. At

sentencing, Davenport’s counsel noted his indigency and asked the trial court to

waive costs. The trial judge merged all of the murder counts and one count of

aggravated arson and sentenced Davenport to 25 years to life. The judge then

merged the other two aggravated arson counts with the felonious assault count and

imposed a five-year consecutive sentence. The judge ordered Davenport to pay

court costs and noted the possibility of community work service to pay the judgment.

               Davenport’s appellate counsel argued only that trial counsel was

ineffective for not pursuing an insanity defense. On July 26, 2018, this court

overruled the assignment of error because Davenport knew the wrongness of his

actions.

               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 May

2019 application was filed approximately ten months after this court’s decision.

Thus, it is untimely on its face.

               For good cause Davenport proffers in his supporting affidavit that

after sentencing his trial counsel deceived him by telling him that the judge had

waived costs and that Davenport would be able to use the prison commissary.

Consistent with that representation, Davenport was able to use the commissary for

his first two years in prison. However, on April 16, 2019, the prison notified him of

the court cost judgment in the amount of $1,231.57 and that the cashier would place
a hold on his account for the amount of the stated obligation. At that time,

Davenport obtained the court transcript and learned that the trial court had imposed

court costs. Davenport commenced this application within a month of learning the

facts. Thus, he concludes that but for his lawyer’s deception and the two-year delay

in collecting the costs, he would have timely pursued an application to reopen.

              The court is not persuaded that these excuses state good cause.

Generally, reliance on one’s counsel does not state good cause for untimely filing. In

State v. Mitchell, 8th Dist. Cuyahoga No. 88977, 2009-Ohio-1874, and State v. Alt,

8th Dist. Cuyahoga No. 96289, 2012-Ohio-2054, this court held that the failure to

counsel to inform the appellant of this court’s decision was not good cause.

Similarly, ignorance of the court’s decision does not state good cause. State v. West,

8th Dist. Cuyahoga No. 92508, 2010-Ohio-5576. This court has ruled that an

attorney’s conduct in accepting a retainer to file an App.R. 26(B) application but

then never doing so did not state good cause. State v. Wilcox, 8th Dist. Cuyahoga

No. 96079, 2013-Ohio-2895, and State v. Logan, 8th Dist. Cuyahoga No. 63943,

2000 Ohio App. LEXIS 5327 (Nov. 14, 2000).

              Delays in obtaining the transcripts also do not state good cause. This

court rejected that argument, ruling that “being a layman and experiencing delays

in obtaining records related to one’s conviction are not sufficient bases for

establishing good cause for untimely filing of an application for reopening.” (Slip

Opinion at 3.) State v. Bussey, 8th Dist. Cuyahoga No. 75301, 2000 WL 1146811

(Aug. 8, 2000); and State v. Chandler, 8th Dist. Cuyahoga No. 59764, 2001 WL
931661 (Aug. 13, 2001) — counsel’s delays in sending applicant the transcript and

refused access to parts of the transcript did not state good cause.

               The Supreme Court of Ohio 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, held that 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 lawyers continued to represent them, and their

appellate lawyers 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 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, lack of imagination, and ignorance of the law do not

establish good cause for failure to seek timely relief under App.R. 26(B).

               Moreover, Davenport’s claim of ineffective assistance of counsel is not

well taken. In order to establish a claim of ineffective assistance of appellate counsel,

the applicant must demonstrate that counsel’s performance was deficient and that

the deficient performance prejudiced the defense. Strickland v. Washington, 466

U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d

136, 538 N.E.2d 373 (1989); and State v. Reed, 74 Ohio St.3d 534, 1996-Ohio-21,

660 N.E.2d 456.
              In Strickland, the United States Supreme Court ruled that judicial

scrutiny of an attorney’s work must be highly deferential. The court noted that it is

all too tempting for a defendant to second-guess his lawyer after conviction and that

it would be all too easy for a court, examining an unsuccessful defense in hindsight,

to conclude that a particular act or omission was deficient. Therefore, “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 at 689.

              Specifically, in regard to claims of ineffective assistance of appellate

counsel, the United States Supreme Court has upheld the appellate advocate’s

prerogative to decide strategy and tactics by selecting what he thinks are the most

promising arguments out of all possible contentions. The court noted: “Experienced

advocates since time beyond memory have emphasized the importance of

winnowing out weaker arguments on appeal and focusing on one central issue if

possible, or at most on a few key issues.” Jones v. Barnes, 463 U.S. 745, 751-752,

103 S.Ct. 3308, 77 L.Ed.2d 987 (1983). Indeed, including weaker arguments might

lessen the impact of the stronger ones. Accordingly, the court ruled that judges

should not second-guess reasonable professional judgments and impose on

appellate counsel the duty to raise every “colorable” issue. Such rules would disserve

the goal of vigorous and effective advocacy. The Supreme Court of Ohio reaffirmed

these principles in State v. Allen, 77 Ohio St.3d 172, 1996-Ohio-366, 672 N.E.2d 638.
                Moreover, even if a petitioner establishes that an error by his lawyer

was professionally unreasonable under all the circumstances of the case, the

petitioner must further establish prejudice: but for the unreasonable error there is a

reasonable probability that the results of the proceeding would have been different.

A reasonable probability is a probability sufficient to undermine confidence in the

outcome. A court need not determine whether counsel’s performance was deficient

before examining prejudice suffered by the defendant as a result of alleged

deficiencies.

                A trial court must render a judgment for court costs against a guilty

defendant, even if the defendant is indigent. R.C. 2947.23(A). The Supreme Court

of Ohio has held that a defendant’s financial status is irrelevant to the imposition of

court costs. A trial court may waive court costs, and such a decision is reviewed on

an abuse of discretion standard. State v. White, 103 Ohio St.3d 580, 2004-Ohio-

5989, 817 N.E.2d 393, and State v. Clevenger, 114 Ohio St.3d 258, 2007-Ohio-4006,

871 N.E.2d 589. Following these cases, this court has repeatedly held that a trial

court did not abuse its discretion in imposing court costs, even if the defendant is

indigent. State v. Copeland, 8th Dist. Cuyahoga No. 107187, 2019-Ohio-987; State

v. Jones, 8th Dist. Cuyahoga No. 105719, 2018-Ohio-847; State v. Dawson, 8th Dist.

Cuyahoga No. 104509, 2017-Ohio-965; and State v. Graves, 8th Dist. Cuyahoga No.

103984, 2016-Ohio-7303. Therefore, it is understandable that in the exercise of

professional judgment, appellate counsel would eschew such an argument.
               Furthermore, in 2013, the Ohio legislature amended R.C. 2947.23 by

adding subsection (C): “the court retains jurisdiction to waive suspend, or modify

the payment of costs of prosecution * * * at the time of sentencing, or at any time

thereafter.”   Thus, appellate counsel in 2018 would be hard-pressed to argue

prejudicial reversible error because Davenport may move the trial court at any time

to waive costs. State v. Beasley, 153 Ohio St.3d 497, 2018-Ohio-493, 108 N.E.3d

1028. In Copeland at ¶ 10, this court ruled: “Because appellant could pursue a

waiver of the payment of court costs after sentencing, he was not prejudiced by

counsel’s performance.”

               Accordingly, this court denies the application to reopen.




MARY J. BOYLE, PRESIDING JUDGE

SEAN C. GALLAGHER, J., and
LARRY A. JONES, SR., J., CONCUR
