State v. Spisak

SUPREME COURT CASES

Laws-info.com » Cases » Ohio » Supreme Court » 1995 » State v. Spisak

State v. Spisak

State: Ohio

Court: Supreme Court

Docket No: 1995-0077

Case Date: 08/16/1995

Plaintiff: State

Defendant: Spisak

Preview:OPINIONS OF THE SUPREME COURT OF OHIO The full texts of the opinions of the Supreme Court of Ohio are being transmitted electronically beginning May 27, 1992, pursuant to a pilot project implemented by Chief Justice Thomas J. Moyer. Please call any errors to the attention of the Reporter's Office of the Supreme Court of Ohio. Attention: Walter S. Kobalka, Reporter, or Deborah J. Barrett, Administrative Assistant. Tel.: (614) 466-4961; in Ohio 1-800-826-9010. Your comments on this pilot project are also welcome. NOTE: Corrections may be made by the Supreme Court to the full texts of the opinions after they have been released electronically to the public. The reader is therefore advised to check the bound volumes of Ohio St.3d published by West Publishing Company for the final versions of these opinions. The advance sheets to Ohio St.3d will also contain the volume and page numbers where the opinions will be found in the bound volumes of the Ohio Official Reports. The State of Ohio, Appellee, v. Spisak, Appellant. [Cite as State v. Spisak (1995), Ohio St.3d .] Appellate procedure -- Application for reopening appeal from judgment and conviction based on claim of ineffective assistance of appellate counsel -- Application denied when applicant fails to establish good cause for failing to file within ninety days after journalization of the court of appeals' decision affirming the conviction, as required by App.R. 26(B). (No. 95-77 -- Submitted April 24, 1995 -- Decided August 16, 1995.) Appeal from the Court of Appeals for Cuyahoga County, Nos. 47458 and 47459. Appellant, Frank G. Spisak, Jr., was convicted of four counts of aggravated murder, two counts of attempted murder, and one count of aggravated robbery with various specifications, and sentenced to death. The court of appeals modified the conviction to three counts of aggravated murder because two of the four murder convictions were allied offenses of similar import, and otherwise affirmed the judgment of the trial court. State v. Spisak (July 19, 1984), Cuyahoga App. Nos. 47458 and 47459, unreported. After a remand, the court of appeals reaffirmed. State v. Spisak (July 15, 1985), Cuyahoga App. Nos. 47458 and 47459, unreported. This court affirmed appellant's conviction. State v. Spisak (1988), 36 Ohio St.3d 80, 521 N.E.2d 800. On March 6, 1989, the United States Supreme Court denied appellant's petition for certiorari. Spisak v. Ohio (1989), 489 U.S. 1071, 109 S.Ct. 1354, 103 L.Ed.2d 822. On March 11, 1994, appellant filed an application to reopen under App. R. 26(B). The court of appeals denied the application, and this appeal followed. Stephanie Tubbs Jones, Cuyahoga County Prosecuting Attorney, and L. Christopher Frey, Assistant Prosecuting Attorney, for appellee. David H. Godiker, Ohio Public Defender, Richard J. Vickers and Kathleen McGarry, Assistant Public Defenders, for appellant.

Per Curiam. Under App. R.26(B)(2)(b), an application for reopening requires "a showing of good cause for untimely filing if the application is filed more than ninety days after journalization of the appellate judgment." In State v. Reddick (1995), 72 Ohio St.3d 88, 90, 647 N.E.2d 784, 786, we held that an applicant who seeks to "reopen an appellate judgment journalized before July 1, 1993, may not simply rely on the fact that App. R. 26(B) did not exist within the ninety days following journalization of the appellate judgment, but must show good cause why he * * * did not attempt to invoke the procedures available under former App. R. 26 and (14)(B)." Appellant seeks to reopen the appellate judgment of July 19, 1984, but fails to show good cause for nearly ten years' delay. We agree with the court of appeals that the application to reopen must be denied as untimely upon its face. The judgment of the court of appeals is therefore affirmed. Judgment affirmed. Moyer, C.J., Douglas, Wright, Resnick, F.E. Sweeney, Pfeifer and Cook, JJ., concur.

Download 1995-ohio-4.pdf