[Cite as State v. McSwain, 2018-Ohio-1827.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 105451



                                     STATE OF OHIO
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                     DORN McSWAIN
                                                       DEFENDANT-APPELLANT




                                      JUDGMENT:
                                  APPLICATION DENIED


                            Cuyahoga County Court of Common Pleas
                                  Case No. CR-16-609563-A
                                  Application for Reopening
                                     Motion No. 514908

        RELEASE DATE:              May 7, 2018
FOR APPELLANT

Dorn McSwain, pro se
Inmate No. 692840
Noble Correctional Institution
15708 McConnelsville Road
Caldwell, Ohio 43724


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
By: Katherine Mullin
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, J.:

       {¶1} Dorn McSwain has filed an application for reopening pursuant to App.R.

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

McSwain, 8th Dist. Cuyahoga No. 105451, 2017-Ohio-8489, that affirmed his conviction

and sentence for the offenses of rape, gross sexual imposition, and kidnaping, but

remanded to correct the sentencing journal entry to reflect what transpired at the

sentencing hearing regarding costs.   We decline to reopen McSwain’s appeal.

       {¶2} App.R. 26(B)(2)(b) requires that McSwain 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 established that:

       [W]e 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, 653 N.E.2d 252 (1995); State v. Reddick, 72 Ohio

St.3d 88, 647 N.E.2d 784 (1995).

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

journalized on November 9, 2017. The application for reopening was not filed until

February 16, 2018, more than 90 days after journalization of the appellate judgment in

McSwain, supra. McSwain has failed to argue any showing of good cause for the

untimely filing of his application for reopening. State v. McCrimon, 8th Dist. Cuyahoga

No. 87617, 2017-Ohio-5742; State v. Battiste, 8th Dist. Cuyahoga No. 102299,

2017-Ohio-8300; State v. Hammond, 8th Dist. Cuyahoga No. 100656, 2016-Ohio-8300.



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




PATRICIA ANN BLACKMON, JUDGE

EILEEN A. GALLAGHER, A.J., and
ANITA LASTER MAYS, J., CONCUR
