[Cite as State v. Davis, 2013-Ohio-5015.]


                  Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                 Nos. 97689, 97691 and 97692


                                       STATE OF OHIO
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                            EDDIE DAVIS
                                                       DEFENDANT-APPELLANT




                                        JUDGMENT:
                                    APPLICATION DENIED


                            Cuyahoga County Court of Common Pleas
                        Case Nos. CR-554690, CR-553823, and CR-555904
                                   Application for Reopening
                                      Motion No. 469316

        RELEASE DATE:                 November 13, 2013
FOR APPELLANT

Eddie Davis, pro se
Inmate No. 621-253
Lake Erie Correctional Institution
P.O. Box 8000
Conneaut, Ohio 44030


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By:    Mark D. Bullard
       T. Allan Regas
Assistant County Prosecutors
Justice Center, 8th and 9th Floors
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN T. GALLAGHER, J.:

       {¶1} On October 24, 2013, the applicant, Eddie Davis, pursuant to App.R. 26(B),

applied to reopen this court’s judgment in State v. Davis, 8th Dist. Cuyahoga Nos. 97689,

97691 and 97692, 2012-Ohio-3951, in which this court affirmed Davis’s sentences for

burglary, theft, and breaking and entering.1 Davis now argues that his appellate counsel

should have argued that the burglary and theft charges were allied offenses and that the

trial court did not comply with H.B. 86 in imposing consecutive sentences. For the

following reasons, this court denies the application.

       {¶2} App.R. 26(B)(1) and (2)(b) require applications claiming ineffective

assistance of appellate counsel to be filed within 90 days from journalization of the

decision unless the applicant shows good cause for filing at a later time. Davis’s October

2013 application was filed approximately 14 months after this court’s decision. Thus, the

application is untimely on its face. In an effort to show good cause, Davis stated the

following in paragraph four of his supporting affidavit: “Appellant[’s] reason for delay is

due to his ongoing health treatment and medications in which the Appellant suffers from



       1

  In State v. Davis, Cuyahoga C.P. No. CR-554690, Davis pleaded guilty to burglary and grand theft;
the trial court sentenced him to concurrent terms of six years on the burglary charge and 12 months on
the grand theft charge. In State v. Davis, Cuyahoga C.P. No. CR-555904, Davis pleaded guilty to
burglary and theft; the trial court sentenced him to concurrent terms of three years for burglary and six
months for theft. In State v. Davis, Cuyahoga C.P. No. CR-553823, Davis pleaded guilty to breaking
and entering and grand theft; the trial court sentenced him to concurrent terms of 12 months for each
charge. The trial court further ordered that the terms for each case are to be served consecutively for
a total of ten years. The trial court noted Davis’s extensive criminal record and the harm caused the
victims. Appellate counsel argued that the trial court did not make the specific findings under R.C.
seizures due to being shot in the head [sic] which he is prescribed Dilantin.”   However,

Davis does not support his claim with any medical records or documentation.

       {¶3} In State v. Gilbert, 8th Dist. Cuyahoga No. 90856, 2009-Ohio-607, reopening

disallowed, 2010-Ohio-4103, this court held that a self-serving affidavit pleading medical

incapacity does not show good cause for untimely filing. This court reasoned that it

would be all too easy for an applicant to claim a medical excuse; thus, a medical claim

must be supported by authenticated records substantiating the medical condition in order to

show good cause.       State v. Brooks, 8th Dist. Cuyahoga No. 94978, 2011-Ohio-1679,

reopening disallowed 2012-Ohio-915; State v. Austin, 8th Dist. Cuyahoga No. 87169,

2006-Ohio-4120, reopening disallowed, 2012-Ohio-1338; and State v. Kinder, 8th Dist.

Cuyahoga     No.    94722,    2011-Ohio-1061, reopening     disallowed 2012-Ohio-1339.

Therefore, Davis has not established good cause.

       {¶4} Moreover, the Supreme Court of Ohio in State v. LaMar, 102 Ohio St.3d 467,

2004-Ohio-3976, 812 N.E.2d 970, and State v. Gumm, 103 Ohio St.3d 162,

2004-Ohio-4755, 814 N.E.2d 861, held that the 90-day deadline for filing must be strictly

enforced. Because Davis has not established good cause for untimely filing, this court

denies the application.

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




2929.14 to impose consecutive sentences.
EILEEN T. GALLAGHER, JUDGE

EILEEN A. GALLAGHER, P.J., and
PATRICIA ANN BLACKMON, J., CONCUR
