[Cite as State v. Phillips, 2012-Ohio-2055.]


                  Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                                JOURNAL ENTRY AND OPINION
                                         No. 96576




                                        STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                       DAVID PHILLIPS
                                                     DEFENDANT-APPELLANT




                                       JUDGMENT:
                                   APPLICATION DENIED


                              Cuyahoga County Court of Common Pleas
                               Case Nos. CR-538733 and CR-540544
                                    Application for Reopening
                                       Motion No. 453843

        RELEASE DATE: May 7, 2012
FOR APPELLANT

David T. Phillips, pro se
Inmate No. 600-843
Mansfield Correctional Institution
P.O. Box 788
Mansfield, Ohio 44901


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
By: Matthew E. Meyer
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., P.J.:

       {¶1} David Phillips has filed an application for reopening pursuant to App.R.

26(B). Phillips seeks to reopen the appellate judgment rendered in State v. Phillips, 8th

Dist. No. 96576, 2011-Ohio-6431, which affirmed his conviction and sentence for four

counts of illegal use of a minor in nudity oriented material or performance, two counts of

child endangering, tampering with evidence, possessing criminal tools, two counts of

drug trafficking, four counts of drug possession, and possession of criminal tools. We

decline to reopen his appeal.

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

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

appellate judgment” that is subject to reopening. The Supreme Court of Ohio, with

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

       We now reject [the applicant’s] claim that those excuses gave him good
       cause to miss the 90-day deadline in App.R. 26(B). The rule was amended
       to include the 90-day deadline more than seven months before [the
       applicant’s] appeal of right was decided by the court of appeals in February
       1994, so the rule was firmly established then, just as it is today. 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 applicant] could have retained new attorneys after the
      court of appeals issued its decision in 1994, or he could have filed the
      application on his own. What he could not do was ignore the rule’s filing
      deadline. * * * 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, at ¶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, 653 N.E.2d 252 (1995); State v. Reddick, 72 Ohio St.3d 88, 647
      N.E.2d 784 (1995).

      {¶3} Phillips is attempting to reopen the appellate judgment journalized on

December 15, 2011. The application for reopening was not filed until April 3, 2012,

more than 90 days after journalization of the appellate judgment in Phillips. Phillips has

failed to establish “good cause” for the untimely filing of his application for reopening.

Restricted access to a law library and indigency do not establish “good cause” for the

untimely filing of his application for reopening. State v. Quiles, 8th Dist. No. 84293,

2006-Ohio-7324. See also State v. Klein, 8th Dist. No. 58389, 1991 WL 41746 (Mar. 28,

1991), reopening disallowed (Mar. 15, 1994), Motion No. 249260, aff’d, 69 Ohio St.3d

1481, 634 N.E.2d 1027 (1994); State v. Trammell, 8th Dist. No. 67834, 1995 WL 415171

(July 13, 1995), reopening disallowed (Apr. 22, 1996), Motion No. 270493; State v.

Travis 8th Dist. No. 56825, 1990 WL 40573 (Apr. 5, 1990), reopening disallowed

(Nov. 2, 1994), Motion No. 251073, aff’d, 72 Ohio St.3d 317, 649 N.E.2d 1226 (1995).

See also State v. Gaston, 8th Dist. No. 79626, 2007 WL 117505 (Jan. 1, 2007), reopening

disallowed (Jan. 17, 2007), Motion No. 391555; State v. Torres, 8th Dist. No. 86530,

2006-Ohio-3696, reopening disallowed (Jan. 3, 2007), Motion No. 390254.
     {¶4} Accordingly, the application for reopening is denied.



FRANK D. CELEBREZZE, JR., PRESIDING JUDGE

LARRY A. JONES, SR., J., and
COLLEEN CONWAY COONEY, J., CONCUR
