[Cite as State v. Brooks, 2012-Ohio-915.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 94978




                                       STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                        JOHN BROOKS
                                                     DEFENDANT-APPELLANT




                                      JUDGMENT:
                                  APPLICATION DENIED


                              Cuyahoga County Common Pleas Court
                                      Case No. CR-509212
                                    Application for Reopening
                              Motion Nos. 446035, 446222 and 446223


RELEASE DATE: March 7, 2012
FOR APPELLANT

John S. Brooks, pro se
Inmate No. 582-900
Marion Correctional Inst.
P. O. Box 57
Marion, OH 43301

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

By: Kristen L. Sobieski
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
KENNETH A. ROCCO, J.:

       {¶1} In State v. Brooks, Cuyahoga County Court of Common Pleas Case No.

CR-509212, applicant was convicted of drug trafficking and possession as well as

weapons charges and possession of criminal tools. This court affirmed that judgment in

State v. Brooks, 8th Dist. No. 94978, 2011-Ohio-1679. The Supreme Court of Ohio

denied Brooks’s pro se motion for delayed appeal and dismissed the appeal. State v.

Brooks, 129 Ohio St.3d 1447, 2011-Ohio-4217, 951 N.E.2d 1044.

       {¶2} Brooks has filed with the clerk of this court an application for reopening. He

asserts that he was denied the effective assistance of appellate counsel because his

appellate counsel did not assign as error the ineffectiveness of trial counsel because trial

counsel did not challenge the propriety of the search and did not object to the admission

of certain exhibits. We deny the application for reopening. As required by App.R.

26(B)(6), the reasons for our denial follow.

       {¶3} Initially, we note that App.R. 26(B)(1) provides, in part: “An application for

reopening shall be filed * * * within 90 days from journalization of the appellate

judgment unless the applicant shows good cause for filing at a later time.” App.R.

26(B)(2)(b) requires that an application for reopening include “a showing of good cause

for untimely filing if the application is filed more than ninety days after journalization of

the appellate judgment.”
       {¶4} This court’s decision affirming applicant’s conviction was journalized on

April 7, 2011. The application was filed on July 11, 2011, in excess of the 90-day limit.1

       {¶5} Brooks also filed on July 11, 2011 a “judicial notice” in which he states that

he has a “mental health issue which makes it very hard for me to work on these motion’s

[sic], I’m asking for help from other inmate’s [sic] so that I can prove my innocence,

while being timely in filing.” Judicial Notice, at 1. He also states that he has had a

“problem with this institution telling me that I don’t have enough monies to send these

motion’s [sic] until I receive state pay * * * .” Id. Additionally, he has attached

“Mental Health assessment’s [sic] from the Department of Corrections and Affidavit of

Indigence from Marion Correctional Facility.” Id. He requests that this court “not hold

it against me for being late.” Id.




                     Days            Month
       1




                23       April

                31       May

                30       June

                11       July

                95       TOTAL

              Wednesday, July 6, 2011, was the ninetieth day.
      {¶6} Brooks supports his claim of mental illness with unauthenticated records

reflecting that Brooks has been diagnosed with non-serious mental illness with respect to

which no specialized mental health services are required. Also, he was determined to be

“stable on [psychiatric] meds” on May 17, 2011, more than seven weeks before his

application for reopening was due.

      {¶7} We also note that on June 7, 2011, Brooks filed pro se both a notice of appeal

and motion for delayed appeal in the Supreme Court of Ohio, Case No. 2001-0955. See

129 Ohio St.3d 1447, supra.

      {¶8} The parties have not provided nor has this court has been able to identify any

controlling authority which articulates a standard for reviewing Brooks’s claim that his

mental illness establishes good cause. Brooks’s claim of good cause requires us to

consider whether unauthenticated records merely demonstrating the presence of a mental

illness are a sufficient basis to establish good cause for the untimely filing of an

application for reopening.

      {¶9} In State v. Morris, 10th Dist. No. 05AP-1032, 2007-Ohio-2382, reopening

disallowed, 2010-Ohio-786, the applicant asserted that he could

      establish good cause for his untimely filing, due to his alleged diagnosis and
      classification by the Ohio Department of Rehabilitation and Corrections as
      “seriously mentally ill” under a “C1" standard. However, the documents
      submitted by defendant fail to explain whether he is classified as a “C1
      categorical” or a “C1 functional.”
       Defendant unsuccessfully advanced this same argument in his petition for
       habeas relief in federal district court, whereby he claimed he had
       established cause for failing to exhaust state court remedies. See Morris v.
       Kerns (Sept. 2, 2009), S.D.Ohio No. 2:08--1176. We too reject the
       argument that his alleged classification as “seriously mentally ill” under a
       “C1" standard establishes good cause for his untimely filing. There is
       nothing in the record to support his claim that his mental health issues
       prevented him from filing a timely application to reopen. See also State v.
       Haliym (Aug. 27, 2001), 8th Dist. No. 54771 (court rejected the defendant’s
       claim of mental impairment arising from a gunshot wound to the head as
       sufficient to establish good cause for waiting more than ten years to file his
       application). Id. at ¶ 9-10.

       {¶10} Likewise, in this case, Brooks has not demonstrated that his mental illness

prevented him from timely filing the application. Indeed, in Morris, the applicant was

categorized as “C1,” serious mental illness. Brooks is categorized as “C2,” non-serious

mental illness, a lesser mental impairment We hold, therefore, that Brooks’s claim of

mental illness does not establish good cause for the untimely filing of his application.

       {¶11} Additionally, his lack of funds to mail his application does not establish

good cause for the untimely filing of an application for reopening. See, e.g., State v.

Graves, 8th Dist. No. 88845, 2007-Ohio-5430, reopening disallowed, 2010-Ohio-4881

(indigence does not establish good cause for the untimely filing of an application for

reopening); see also State v. Braddy, 8th Dist. No. 83462, 2004-Ohio-3128, reopening

disallowed, 2005-Ohio-282 (lack of adequate funds to mail an application for reopening

does not establish good cause for untimely filing).
      {¶12} The Supreme Court has upheld judgments denying applications for

reopening solely on the basis that the application was not timely filed and the applicant

failed to show “good cause for filing at a later time.” App.R. 26(B)(1). e.g., State v.

Gumm, 103 Ohio St.3d 162, 2004-Ohio-4755, 814 N.E.2d 861, and State v. LaMar, 102

Ohio St.3d 467, 2004-Ohio-3976, 812 N.E.2d 970. Brooks’s failure to demonstrate good

cause is a sufficient basis for denying the application for reopening. See, e.g.,State v.

Almashni, 8th Dist. No. 92237, 2010-Ohio-898, reopening disallowed, 2012-Ohio-349.

      {¶13} As a consequence, Brooks has not met the standard for reopening.

Accordingly, the application for reopening is denied.




KENNETH A. ROCCO, JUDGE

FRANK D. CELEBREZZE, JR., P.J., and
JAMES J. SWEENEY, J., CONCUR
