[Cite as State v. Kinney, 2019-Ohio-2567.]

COURT OF APPEALS OF 

OHIO 

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

STATE OF OHIO, : 

Plaintiff-Appellee, : 

No. 106952 

v. : 

 

DARIUS KINNEY, : 

Defendant-Appellant. : 

________________________________________ 

JOURNAL ENTRY AND OPINION 

JUDGMENT: APPLICATION DENIED 

RELEASED AND JOURNALIZED: June 25, 2019 

_______________________________________ 

Cuyahoga County Court of Common Pleas 

Case No. CR-17-617832-A 

Application for Reopening 

Motion No. 527650 

________________________________________ 

Appearances: 

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and 

Frank Romeo Zeleznikar, Assistant Prosecuting Attorney, for 

appellee. 

Darius Kinney, pro se. 
FRANK D. CELEBREZZE, JR., J.: 

{¶ 1} On April 17, 2019, the applicant, Darius Kinney, pursuant to App.R. 

26(B), applied to reopen this court’s judgment in State v. Kinney, 8th Dist. Cuyahoga No. 

106952, 2019-Ohio-629, in which this court affirmed his convictions and sentences for 

tampering with evidence, failure to stop after an accident, and two counts of aggravated vehicular 

homicide.1

 Kinney now argues that his appellate counsel was ineffective for failing to file an 

App.R. 26(A) motion for reconsideration or an App.R. 25 motion to certify conflict and for 

failing to notify him timely of this court’s decision and his remedies. On May 3, 2019, the state 

of Ohio filed a brief in opposition. For the following reasons, this court denies the application 

to reopen, sua sponte. 

{¶ 2} App.R. 26(B)(2)(c) provides that the basis of an application shall be “[o]ne 

or more assignments of error or arguments in support of assignments of error that previously 

were not considered on the merits in the case by any appellate court * * * because of appellate 

counsel’s deficient representation.” Kinney’s arguments that his appellate counsel was 

ineffective for failing to file a motion for reconsideration or a motion to certify a conflict and for 

failing to timely notify him about this court’s decision or the above remedies are not authentic 

assignments of error that can support an App.R. 26(B) application. 

 1

 The record indicates that Kinney drove through an intersection killing two people; he did not stop. There 

was a video recording of the incident. Shortly afterwards, the police received a tip that Kinney was the perpetrator. 

Upon arriving at his house, the officers saw his motor vehicle partially covered by a blanket, but the vehicle showed 

damage consistent with the video. Kinney eventually pleaded no contest and the judge sentenced him to four years 

on each vehicular homicide count and two years each on the tampering and failure to stop counts, all consecutive.

On appeal, counsel argued that trial counsel was ineffective for failing to file a motion to suppress and that 

the record did not support consecutive sentences. This court affirmed. After examining the Fourth Amendment 

argument, this court ruled that “there was no Fourth Amendment violation by the investigating officers’ conduct in 

viewing the damage to the SUV.” Kinney at ¶ 25. 
{¶ 3} In State v. Montgomery, 8th Dist. Cuyahoga No. 102043, 2016-Ohio-378, 

Montgomery complained about his appellate counsel’s conduct in appellate procedure: taking 

two extensions of time, failing to review the record, failing to inform him about oral argument, 

and delaying in notifying him of this court’s decision. These complaints are fully analogous to 

filing motions for reconsideration and to certify a conflict. This court ruled that they are not 

authentic assignments of error. “They do not address mistakes in the trial court that could be 

rectified on appeal.” Montgomery at ¶ 3. The court further held that communications between 

appellate counsel and the applicant cannot provide the basis of reopening. State v. Pratt, 8th 

Dist. Cuyahoga No. 93123, 2010-Ohio-4998; State v. Marcum, 7th Dist. Columbiana No. 10 CO 

17, 2012-Ohio-2721; State v. Woodson, 8th Dist. Cuyahoga No. 93476, 2010-Ohio-5230. 

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

__________________________________ 

FRANK D. CELEBREZZE, JR., JUDGE 

EILEEN T. GALLAGHER, P.J., and 

RAYMOND C. HEADEN, J., CONCUR