[Cite as State v. Havergne, 2012-Ohio-4270.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 96951



                                      STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                 TYRELL HAVERGNE
                                                      DEFENDANT-APPELLANT



                                      JUDGMENT:
                                  APPLICATION DENIED


                              Cuyahoga County Common Pleas Court
                                     Case No. CR-523541
                                   Application for Reopening
                                      Motion No. 455517

        RELEASE DATE:                September 17, 2012
FOR APPELLANT

Tyrell Havergne, pro se
Inmate No. A-583794
Trumbull Correctional Institution
P.O. Box 901
Leavittsburg, Ohio 44430


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
By: Mark J. Mahoney
Assistant County Prosecutor
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., J.:

        {¶1} Tyrell Havergne has filed an application for reopening pursuant to App.R.

26(B). Havergne is attempting to reopen the appellate judgment, as rendered in State v.

Havergne, 8th Dist. No. 96951, 2012-Ohio-810, which affirmed the sentence imposed by

the trial court after remand for the merger of allied offenses of similar import. We

decline to reopen Havergne’s appeal.

        {¶2} App.R. 26(B)(2)(b) requires that Havergne establish “a showing of good

cause for untimely filing if the application is filed more than 90 days after journalization

of the appellate judgment,” which is subject to reopening. The Supreme Court of Ohio,

with regard to the 90-day deadline as provided by App.R. 26(B)(2)(b), has established

that:

        We now reject [the applicant’s] claims that those excuses gave good cause
        to miss the 90-day deadline in App.R. 26(B). *** Consistent enforcement
        of the rule’s deadline by the appellate courts in Ohio protects on the one
        hand the state’s legitimate interest in the finality of its judgments and
        ensures on the other hand that any claims of ineffective assistance of
        appellate counsel are promptly examined and resolved.

       Ohio and other states “may erect reasonable procedural requirements for
       triggering the right to an adjudication,” Logan v. Zimmerman Brush Co.
       (1982), 455 U.S. 422, 437, 102 S.Ct. 1148, 71 L.Ed.2d 265, and that is what
       Ohio has done by creating a 90-day deadline for the filing of applications to
       reopen. * * * The 90-day requirement in the rule is applicable to all
       appellants, State v. Winstead (1996), 74 Ohio St.3d 277, 278, 658 N.E.2d
       722, and [the applicant] offers no sound reason why he — unlike so many
       other Ohio criminal defendants — could not comply with that fundamental
       aspect of the rule. (Emphasis added.)
State v. Gumm, 103 Ohio St.3d 162, 2004-Ohio-4755, 814 N.E.2d 861, ¶ 7. See also State

v. LaMar, 102 Ohio St.3d 467, 2004-Ohio-3976, 812 N.E.2d 970; State v. Cooey, 73
Ohio St.3d 411, 1995-Ohio-328, 653 N.E.2d 252; State v. Reddick, 72 Ohio St.3d 88,

1995-Ohio-249, 647 N.E.2d 784.

       {¶3} Herein, Havergne is attempting to reopen the appellate judgment that was

journalized on March 1, 2012. The application for reopening was not filed until May 31,

2012, more than 90 days after journalization of the appellate judgment in Havergne,

supra. Havergne has failed to establish “a showing of good cause” for the untimely

filing of his application for reopening. State v. Klein, 8th Dist. No. 58389, 1991 Ohio

App. LEXIS 1346 (Mar. 28, 1991), reopening disallowed, Motion No. 249260 (Mar. 15,

1994), aff’d, 69 Ohio St.3d 1481, 634 N.E.2d 1027 (1994); State v. Trammell, 8th Dist.

No. 67834, 1995 Ohio App. LEXIS 2962 (July 13, 1995), reopening disallowed, Motion

No. 270493 (Apr. 22, 1996); State v. Travis, 8th Dist. No. 56825, 1990 Ohio App.

LEXIS 1356 (Apr. 5, 1990), reopening disallowed, Motion No. 251073 (Nov. 3, 1994),

aff’d, 72 Ohio St.3d 317, 1995-Ohio-152, 649 N.E.2d 1226. See also State v. Gaston,

8th Dist. No. 79626, 2007-Ohio-155; State v. Torres, 8th Dist. No. 86530, 2007-Ohio-9.

       {¶4} Accordingly, the application for reopening is denied.



FRANK D. CELEBREZZE, JR., JUDGE

MARY J. BOYLE, P.J., and
LARRY A. JONES, SR., J., CONCUR
