[Cite as Olmsted Falls v. Buckwald, 2011-Ohio-6174.]

Court of Appeals of Ohio 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 94350

CITY OF OLMSTED FALLS 

PLAINTIFF-APPELLEE 

vs. 

RALPH D. BUCKWALD 

DEFENDANT-APPELLANT 

JUDGMENT: 

APPLICATION DENIED 

Berea Municipal Court 

Case Nos. 08TRC04655 and 08CRB01334 

Application for Reopening 

Motion No. 445265 

RELEASE DATE: December 2, 2011 
FOR APPELLANT 

Ralph D. Buckwald 

Inmate #0121730 

Cuyahoga County Jail 

P. O. Box 5600 

Cleveland, OH 44101 

ATTORNEY FOR APPELLEE 

Gregory M. Sponseller 

Director of Law 

City of Berea 

11 Berea Commons 

Berea, OH 44017 

MARY EILEEN KILBANE, A.J.: 

{¶ 1} On June 13, 2011, the applicant, Ralph Buckwald, pursuant to App.R. 26(B), 

applied to reopen this court’s judgment in City of Olmsted Falls v. Ralph Buckwald (Dec. 9, 

2009), Cuyahoga App. No. 94350 in which this court dismissed Buckwald’s appeal as 

untimely.1

 Buckwald who represented himself on appeal argues that his appeal should be 

reopened because (1) he timely tendered his appellate papers to the clerk of the Berea 

Municipal Court, but the clerk rejected them as incomplete, and (2) he should not have been 

convicted of a motor vehicle offense because he was riding a bicycle at the time. For the 

following reasons, this court denies his application to reopen. 

 1

 On September 23, 2009, Buckwald pleaded no contest to driving under the influence, and 

the court sentenced him to ten days in jail, one-year driver’s license suspension, and a $500 fine 

suspended. Buckwald filed his appeal on November 30, 2009, without seeking leave to file a 

delayed appeal. 
{¶ 2} First, res judicata bars this application. See, generally, State v. Perry (1967), 

10 Ohio St.2d 175, 226 N.E.2d 104. Res judicata prevents repeated attacks on a final 

judgment and applies to all issues which were or might have been litigated. In State v. 

Murnahan (1992), 63 Ohio St.3d 60, 584 N.E.2d 1204, the supreme court ruled that res 

judicata may bar a claim of ineffective assistance of appellate counsel unless circumstances 

render the application of the doctrine unjust. 

{¶ 3} In the present case, Buckwald made the same argument on timeliness in a 

motion for reconsideration filed on December 16, 2009, and in an addendum filed on 

December 18, 2009, as he does in the present application to reopen. This court rejected that 

argument in February 2010, by denying the motion for reconsideration under Appellate Rules 

4, 5, and 26. This court should not and will not reconsider its ruling after the matter has been 

fully and fairly presented. 

{¶ 4} Moreover, an application to reopen pursuant to App.R. 26(B) is the wrong 

remedy. Subsection (B)(1) states this remedy’s scope: “A defendant in a criminal case may 

apply for reopening of the appeal from the judgment of conviction and sentence, based on a 

claim of ineffective assistance of appellate counsel.” Because Buckwald represented himself 

in the appeal, he is now precluded from arguing ineffective assistance of appellate counsel. 

State v. Boone (1996), 114 Ohio App.3d 275, 683 N.E.2d 67; State v. Vines (Sept. 14, 1989), 

Cuyahoga App. No. 55693 and (Nov. 3, 2000), Cuyahoga App. No. 78691, reopening 

disallowed (June 5, 2003), Motion No. 347277; State v. Smith (Dec. 10, 2001), Cuyahoga 

App. No. 79292, reopening disallowed (Mar. 8, 2002), Motion No. 336058; and State v. 
Jackson, Cuyahoga App. No. 80118, 2002-Ohio-5461. As the United States Supreme Court 

noted in Faretta v. California (1975), 422 U.S. 806, 834, n.46, 95 S.Ct. 2525, “a defendant 

who elects to represent himself cannot thereafter complain that the quality of his own defense 

amounted to a denial of ‘effective assistance of counsel.’” 

{¶ 5} Finally, 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 June 2011 application 

was filed approximately a year and one-half after this court’s decision. Thus, it is untimely 

on its face. However, Buckwald offers no explanation for his untimely filing of the 

application to reopen. He only repeats his argument that he timely tendered the original 

notice of appeal, but the municipal court clerk refused to file it for failure to tender the filing 

fee. That does not satisfy the good cause requirement under App.R. 26(B). 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. 

{¶ 6} Accordingly, this court denies the application to reopen. 

 

MARY EILEEN KILBANE, ADMINISTRATIVE JUDGE 

MARY J. BOYLE, J., and 

SEAN C. GALLAGHER, J., CONCUR