STATE OF OHIO v. KURTIS FIELDS

Cleveland, Ohio - Criminal defense attorney represented Kurtis Fields with murder and having a weapon while under disability charges.

On February 26, 2015, Tyrone Rodgers and Jasmine and Jerica

Mathis were arguing in the hallway of Jasmine's apartment building after Jasmine

had asked Tyrone to leave her residence. A surveillance video showed that two men

entered the apartment building. One man passed a gun to the other, and that man

shot and mortally wounded Tyrone. At trial, two witnesses identified Fields as the

shooter, including the man who passed the gun. A jury found Fields guilty of two

counts of murder and two counts of felonious assault with one- and three-year

firearm specifications. The judge found him guilty of having a weapon while under

disability, as well as notice of prior conviction and repeat violent offender

specifications. The judge merged various offenses and sentenced Fields to 34 years

to life.

Fields's appellate counsel argued that the convictions were against

the manifest weight of the evidence, that it was improper to impose maximum

consecutive sentences, and that trial counsel was ineffective for failing to file a

motion to dismiss for preindictment delay, for failing to seek the disqualification of

the trial court judge for engaging in an ex parte discussion, and for failing to object

to improper expert witness testimony.

App.R. 26(B)(1) and (2) 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. This court

issued its decision on October 1, 2020, and Fields's application was filed seven days

late on January 6, 2021 [30 (days remaining in October) + 30 (November) + 31

(December) + 6 (January) = 97]. Fields did not proffer any good cause for the late

filing, but the court notes that his application's certificate of service bears the date

of December 20, 2020.

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-

Ohio4755, 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).

As a corollary, miscalculation of the time needed for mailing also does

not state good cause. State v. Winstead, 74 Ohio St.3d 277, 1996-Ohio-52, 658

N.E.2d 722, is particularly instructive. Winstead hired an overnight courier to

deliver his App.R. 26(B) application. However, the courier filed it a day late. The

Supreme Court of Ohio affirmed the denial of the application as untimely, because

the courier's delay was not good cause and because there was no denial of due

process or equal protection in applying a rule applicable to all appellants. See also

State v. Agosto, 8th Dist. Cuyahoga No. 87283, 2006-Ohio-5011, reopening

disallowed 2007-Ohio-848; and State v. Peyton, 8th Dist. Cuyahoga No. 86797,

2006-Ohio-3951, reopening disallowed, 2007-Ohio-263 ─ App.R. 26(B)

application to reopen denied as untimely because it was filed two days late.

Accordingly, this court denies the application to reopen.