[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-Ohio5989, 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