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7th District: Ignorance in the law no excuse to file late application
TRACEY BLAIR
Legal News Reporter
Published: May 22, 2013
The fact that an appellant is untrained in the law does not establish good cause to excuse a delayed application for reopening a murder case, according to a recent 7th District Court of Appeals opinion.
The three-judge panel dismissed Gregory McGee’s application to reopen his appeal on May 1.
A Mahoning County jury convicted McGee of murder with a firearm specification and of having a weapon while under disability. He was sentenced to 15 years to life for murder, three years for the firearm specification and three years for the weapons charge in July 2007.
In December 2009, the appellate court affirmed the conviction and sentence.
McGee now argues his appellate lawyer was ineffective for failing to raise several speedy trial issues on appeal.
In a 3-0 opinion, 7th District Judge Cheryl L. Waite cited App.R. 26(B)(1), which states an application for reopening within 90 days from journalization of the appellate judgment unless the applicant shows good cause for filing at a later time.
Waite noted that McGee filed on Feb. 28, 2013, almost three years past the deadline.
“Appellant claims that he had good cause to file this application three years late because his speedy trial issue was complex,” according to the opinion. “Appellant states that he is not himself a lawyer and had no reason to dispute the advice of his counsel that there was no viable speedy trial issue, and that he only recently hired private counsel to investigate the issue. These do not present sufficient reasons for allowing a delayed reopening of an appeal.
“The fact that Appellant was untrained in the law does not establish good cause… The additional fact that Appellant may have been partially deprived of legal research tools and resources due to being incarcerated does not establish good cause for filing the application late.”
Waite noted the issues raised in his application were not overly complex.
McGee also claimed it took him “several months” to obtain the necessary funding to hire another attorney after his direct appeal ended, but gave no explanation as to why it took several years, rather than months, to file the reopening application.
7th District judges Gene Donofrio and Joseph J. Vukovich concurred.
The case is cited State v. McGee, No. 07 MA 137.