[Cite as State v. Diggs, 2019-Ohio-244.]




             IN THE COURT OF APPEALS OF OHIO
                              SEVENTH APPELLATE DISTRICT
                                   BELMONT COUNTY

                                            STATE OF OHIO,

                                            Plaintiff-Appellee,

                                                     v.

                                            ANDRE C. DIGGS,

                                           Defendant-Appellant.


                        OPINION AND JUDGMENT ENTRY
                                            Case No. 16 BE 0036


                                      Application for Reopening

                                            BEFORE:
                  Kathleen Bartlett, Cheryl L. Waite, Carol Ann Robb, Judges.


                                                JUDGMENT:
                                                  DENIED


Andre C. Diggs, pro-se, A726-203, Noble Correctional Institution, 15708 McConnelsville
Road, Caldwell, Ohio 43724-9678, for Appellant and

Atty. J. Flanagan, Courthouse Annex 1, 147-A West Main Street, St. Clairsville, Ohio
43950, for Appellee.

                                           Dated: January 24, 2019
                                                                                       –2–


PER CURIAM.

       {¶1}    On October 18, 2018, Appellant Andre Diggs, acting pro se, filed a motion
for clarification of our June 25, 2018, decision in State v. Diggs, 7th Dist. 16 BE 0036,
2018-Ohio-2761. No opposition brief was filed. In the motion, Appellant asks us to “lay
rest to further argument” based upon “unresolved issues,” so we address the motion for
clarification as a motion to reopen filed pursuant to App.R. 26(B).
       {¶2}    App.R. 26(B)(1) provides, in part: “An application for reopening shall be
filed * * * within ninety days from journalization of the appellate judgment unless the
applicant shows good cause for filing at a later time.” The Belmont County Clerk of
Courts journalized the entry at issue and served copies of the decision on all of the
parties on June 26, 2018. As a consequence, Appellant’s application for reopening is
untimely.
       {¶3}    Although App.R. 26(B)(2)(b) requires that an application for reopening
include “a showing of good cause for untimely filing,” Appellant does not offer any
explanation for his failure to timely file the motion. Appellant has also failed to comply
with several filing requirements set forth in App.R. 26(B).        Of greatest import, an
application for reopening shall be granted only upon a demonstration that a genuine
issue as to whether the applicant was deprived of the effective assistance of counsel on
appeal.     App.R. 26(B)(5).   Even assuming that Appellant’s motion was timely and
complied with the statutory filing requirements, the arguments advanced in the pro se
motion do not demonstrate that Appellant received ineffective assistance of counsel.
       {¶4}    In Appellant’s direct appeal, we reversed his conviction for knowingly
selling or offering to sell heroin in an amount equal to or in excess of five grams but less
than ten grams in a school zone, in violation of R.C. 2925.03(A)(1)(C)(6)(d).          The
evidence offered at trial established that Appellant actually sold 3.88 grams of heroin to
a confidential informant in the vicinity of a school. Although there was evidence that
established an offer to sell drugs, the offer was not made by Appellant and no amount of
heroin was specified in the offer to sell. As a consequence, we reversed Appellant’s
conviction and remanded the matter for modification of the degree of the offense and for
resentencing consistent with Ohio law.
       {¶5}    Citing Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d


Case No. 18 BE 0036
                                                                                         –3–


435 (2000), Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002),
and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004),
Appellant argues that the jury did not find him guilty of knowingly selling the 3.38 grams
of heroin that was recovered following the controlled buy, so his conviction should be
vacated. (Mot. p. 1).       The cited cases hold that “[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a reasonable
doubt.” Blakely at 2536, quoting Apprendi at 490. Ring extended the rule announced in
Apprendi to the judicial fact-finding required prior to the imposition of the death penalty.
       {¶6}      The evidence adduced at trial establishes that Appellant knowingly sold
3.38 grams of heroin. Apprendi and its progeny relate to sentencing, not conviction,
and, therefore, Appellant’s reliance on the foregoing cases to challenge his conviction is
misplaced.
       {¶7}      Appellant next argues that the school zone specification cannot be
invoked because “if it attaches to the 3.38 [grams of heroin] actually sold, then it must
be vacated pursuant to thee [sic] jury not finding guilt on the element of sell [sic].” (Mot.,
p. 2.) Based on the evidence adduced at trial, the jury found that Appellant sold heroin
within the vicinity of a school.        Insofar as no judicial fact-finding was required,
Appellant’s challenge to the school zone specification based on the cited case must
likewise fail.
       {¶8}      For the foregoing reasons, Appellant’s motion for clarification is denied.



Bartlett, J., concurs.

Waite, P.J., concurs.

Robb, J., concurs.



                                    NOTICE TO COUNSEL

This document constitutes a final judgment entry.




Case No. 18 BE 0036
