[Cite as State v. Breznicki, 2014-Ohio-197.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 94971




                                       STATE OF OHIO
                                                        PLAINTIFF-APPELLEE

                                                  vs.


                              MAJOR M. BREZNICKI
                                                        DEFENDANT-APPELLANT




                                        JUDGMENT:
                                    APPLICATION DENIED


                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-527966
                                   Application for Reopening
                                      Motion No. 469495

        BEFORE:           Jones, J., Kilbane, P.J., and Rocco, J.

        RELEASED AND JOURNALIZED: January 22, 2014
ATTORNEY FOR APPELLANT

Britta M. Barthol
P.O. Box 218
Northfield, Ohio 44067


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: Mahmoud Awadallah
        James M. Price
Assistant Prosecuting Attorneys
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., P.J.:

       {¶1} On October 30, 2013, the applicant, Major M. Breznicki, pursuant to App.R.

26(B) and State v. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204 (1992), applied to

reopen this court’s judgment in State v. Breznicki, 8th Dist. Cuyahoga No. 94971,

2011-Ohio- 697, that affirmed Breznicki’s convictions and sentences for one count of

rape. Breznicki claims that he has good cause for making an untimely application and that

his appellate attorney was ineffective for not arguing that the trial court erred by

accepting his guilty plea without advising him of the nature of the charges against him

and not ensuring that he understood them. The state has opposed the application for

reopening on various grounds and Breznicki has filed a reply along with a motion to

supplement his application with documents “regarding [his] learning/mental deficiency.”

For the following reasons, this court denies the application to reopen.

       {¶2} The appellate judgment was journalized on February 17, 2011. The

application for reopening was not filed until October 30, 2013. This falls well outside the

time limits of App.R. 26(B)(1) that requires applications to be filed within 90 days after

journalization of the appellate judgment. The only exception that would permit us to

review an untimely application is if applicant establishes good cause for filing at a later

time. Id.

       {¶3} The Supreme Court of Ohio, with regard to the 90-day deadline provided by

App.R. 26(B)(2)(b), has firmly established that:
       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, 1996 Ohio 52, 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.

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, 647

N.E.2d 784 (1995).

       {¶4} Breznicki has failed to establish “good cause” for the untimely filing of his

application for reopening. He urges us to find good cause exists for the untimely filing for

the following reasons: (1) he was relying on his mother’s efforts to retain counsel for

him; (2) he has a learning disability; and (3) he has no funds to pay for counsel so he is

relying on the advice of a “jail-house-lawyer.” It is well settled that none of the reasons
qualify as good cause for filing an application pursuant to App.R. 26(B) outside the

90-day time period.

       [A]n App.R. 26(B) application for reopening is a “collateral postconviction
       remedy,” and the state “has no constitutional obligation * * * to provide
       counsel to those defendants who file applications under that rule.”

State v. Twyford, 106 Ohio St.3d 176, 2005-Ohio-4380, 833 N.E.2d 289, ¶ 8, quoting

Morgan v. Eads, 104 Ohio St.3d 142, 2004-Ohio-6110, 818 N.E.2d 1157. Applicant’s

lack of legal training does not excuse his failure to comply with the deadline. Id. at ¶ 9,

citing State v. Reddick, 72 Ohio St.3d 88, 91, 647 N.E.2d 784 (1995).

       {¶5} In support of his alleged learning mental deficiency, applicant has submitted

the following documents: an affidavit of a fellow inmate and uncertified school records

from 1984 and 1985. The inmate affidavit avers that applicant had expressed difficulty

understanding things and required assistance in preparation of his legal documents. The

school records pertain to assessments of applicant’s academic and behavioral issues from

approximately thirty years ago.      These documents do not provide good cause for

excusing applicant’s failure to comply with the deadline of App.R. 26(B). See State v.

Morris, 10th Dist. Franklin No. 05AP-1032, 2010-Ohio-786, ¶ 10 (finding applicant’s

alleged diagnosis and classification as “seriously mentally ill” did not provide support for

his claim that his mental health issues prevented him from filing a timely application),

citing State v. Haliym, 8th Dist. Cuyahoga No. 54771, 2001 Ohio App. LEXIS 3892

(Aug. 27, 2001) (“court rejected 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.”). This court has held that an applicant’s “learning disability,

his limited formal education and the fact that he ‘does not possess a legal mind’” are not

good cause for an untimely application for reopening. State v. Day, 8th Dist. Cuyahoga

No. 79368, 2005-Ohio-281, ¶ 5; see also State v. McNeal, 8th Dist. Cuyahoga No. 77977,

2001 Ohio App. LEXIS 1596 (Apr. 5, 2001), reopening disallowed, 2002-Ohio-4764,

Motion No. 38615, ¶ 4-5 (rejecting a “learning disability” as ground for demonstrating

good cause for the late filing of an application for reopening).

       {¶6} Finally, the principles of res judicata bars an applicant from raising any issues

that were raised previously or could have been raised previously in an appeal. State v.

Were, 120 Ohio St. 3d 85, 2008-Ohio-5277, 896 N.E.2d 699, ¶ 7. Here, Breznicki

contends that his appellate counsel was ineffective for failing to challenge the validity of

his plea. Specifically, he suggests that he did not understand the nature of the charges

against him in violation of Crim.R. 11. However, appellate counsel argued that the trial

court erred by denying the motion to withdraw his plea. In resolving this assignment of

error, this court found that applicant was

       afforded a full Crim.R. 11 hearing, wherein it was demonstrated that
       Breznicki entered his plea knowingly, intelligently, and voluntarily, ***
       Further, the record demonstrates that the trial court afforded Breznicki a full
       hearing on his motion to withdraw his plea and gave the motion full and fair
       consideration.

Breznicki, 2011-Ohio-697, at ¶ 12. Because this court already found that Breznicki

entered his plea knowingly, intelligently, and voluntarily, the doctrine of res judicata bars

further consideration of this issue.
     {¶7} The application for reopening is denied.




LARRY A. JONES, SR., PRESIDING JUDGE

MARY EILEEN KILBANE, J., and
KENNETH A. ROCCO, J., CONCUR
