[Cite as State v. Congress, 2018-Ohio-4521.]


                 Court of Appeals of Ohio
                                   EIGHTH APPELLATE DISTRICT
                                      COUNTY OF CUYAHOGA


                                  JOURNAL ENTRY AND OPINION
                                          No. 102867



                                               STATE OF OHIO

                                                          PLAINTIFF-APPELLEE

                                                    vs.

                                       DRAYSHON CONGRESS

                                                          DEFENDANT-APPELLANT




                                            JUDGMENT:
                                        APPLICATION DENIED



                               Cuyahoga County Court of Common Pleas
                                     Case No. CR-13-579147-A
                                     Application for Reopening
                                         Motion No. 519888

        RELEASE DATE: November 5, 2018
FOR APPELLANT

Drayshon Congress
Inmate No. 652486
Richland Correctional Institution
P.O. Box 8107
Mansfield, Ohio 44905


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
By: Anthony T. Miranda
Assistant County Prosecutor
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113




TIM McCORMACK, J.:

       {¶1} Drayshon Congress has filed an application for reopening pursuant to App.R. 26(B).

 Congress is attempting to reopen the appellate judgment rendered in State v. Congress, 8th Dist.

Cuyahoga No. 102867, 2015-Ohio-5264, that affirmed the trial court’s denial of a postconviction

motion to vacate the plea of guilty entered in State v. Congress, Cuyahoga C.P. No.

CR-13-579147-A. We decline to reopen Congress’s appeal.

       {¶2} App.R. 26(B)(2)(b) requires that Congress 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 him 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, Congress is attempting to reopen the appellate judgment that was

journalized on December 17, 2015. The application for reopening was not filed until August 2,

2018, more than 90 days after journalization of the appellate judgment in Congress, supra.

Congress claims that: 1) he did not timely receive notice from appellate counsel with regard to

the ability to file an App.R. 26(B) application for reopening; 2) detrimental reliance upon the

legal advice provided by appellate counsel; and 3) ignorance of the law. Congress has failed to

demonstrate any viable showing of good cause for the untimely filing of his application for

reopening.

          {¶4} The arguments raised by Congress in support of his good cause argument do not

establish a valid basis for the untimely filing of his App.R. 26(B) application for reopening. In
State v. Lamar, 8th Dist. Cuyahoga No. 49551, 1985 Ohio App. LEXIS 7284 (Oct. 3, 1985),

reopening disallowed

(Nov. 15, 1995), Motion No. 63398, this court held that lack of communication with appellate

counsel did not demonstrate good cause. Similarly, in State v. White, 8th Dist. Cuyahoga No.

57944, 1991 Ohio App. LEXIS 357 (Jan. 31, 1991), reopening disallowed (Oct. 19, 1994),

Motion No. 49174, and State v. Allen, 8th Dist. Cuyahoga No. 65806, 1994 Ohio App. LEXIS

4956 (Nov. 3, 1994), reopening disallowed (July 8, 1996), Motion No. 67054, this court rejected

reliance on counsel as showing good cause.         Specifically, in State v. Fortson, 8th Dist.

Cuyahoga No. 72229, 1998 Ohio App. LEXIS 6104 (Dec. 17, 1998), reopening disallowed (Jan.

23, 2001), Motion No. 18195, 2001 Ohio App. LEXIS 245, this court held that an attorney’s

delay in notification of an appellate decision does not state good cause. See also State v. Moss,

8th Dist. Cuyahoga Nos. 62318 and 62322, 1993 Ohio App. LEXIS 2491 (May 13, 1993),

reopening disallowed, 1997), Motion No. 75838; State v. McClain, 8th Dist. Cuyahoga No.

67785, 1995 Ohio App. LEXIS 3207 (Aug. 3, 1995), reopening disallowed (Apr. 15, 1997),

Motion No. 76811; and State v. Russell, 8th Dist. Cuyahoga No. 69311, 1996 Ohio App. LEXIS

1879 (May 9, 1996), reopening disallowed (June 16, 1997), Motion No. 82351, 1997 Ohio App.

LEXIS 2663.

       {¶5} In addition, this court has consistently ruled that lack of knowledge or ignorance of

the law does not provide sufficient cause for untimely filing. State v. Klein, 8th Dist. Cuyahoga

App. No. 58389, 1991 Ohio App. LEXIS 1346 (Apr. 8, 1991), reopening disallowed (Mar. 15,

1994), Motion No. 49260, affirmed, 69 Ohio St.3d 1481, 634 N.E.2d 1027 (1994); State v.

Trammell, 8th Dist. Cuyahoga No. 67834, 1995 Ohio App. LEXIS 2962 (July 24, 1995),

reopening disallowed (Apr. 22, 1996), Motion No. 70493; State v. Cummings, 8th Dist.
Cuyahoga App. No. 69966, 1996 Ohio App. LEXIS 4565 (Oct. 17, 1996), reopening disallowed

(Mar. 26, 1998), Motion No. 92134; and State v. Young, 8th Dist. Cuyahoga Nos. 66768 and

66769, 1994 Ohio App. LEXIS 4634 (Oct. 13, 1994), reopening disallowed (Dec. 5, 1995),

Motion No. 66164.

       {¶6} Finally, an application to reopen pursuant to App.R. 26(B) cannot be employed by

Congress to reopen his appeal. App.R.26 (B)(1) states that “[a] defendant in a criminal case may

apply for reopening of the appeal from the judgment of conviction and sentence, based on a

claim of ineffective assistance of appellate counsel.” This application is not an effort to reopen

the appeal of a conviction and sentence. It is an effort to reopen the appeal of a denial of a

motion to withdraw the guilty plea and, thus, is beyond the scope of App.R. 26(B).

       {¶7} In State v. Halliwell, 8th Dist. Cuyahoga No. 70369, 1996 Ohio App. LEXIS 5750

(Dec. 19, 1996), reopening disallowed (Jan. 28, 1999), Motion No. 70369, this court held that

App.R. 26(B) does not apply to appeals from an adverse ruling on a motion to vacate a guilty

plea. See also State v. White, 8th Dist. Cuyahoga No. 78190, 2001 Ohio App. LEXIS 5320

(Nov. 29, 2001), reopening disallowed (May 13, 2004), Motion No. 357536; State v. Shurney,

8th Dist. Cuyahoga No. 64670, 1994 Ohio App. LEXIS 896 (Mar. 10, 1994), reopening

disallowed (May 15, 1995), Motion No. 60758. App.R. 26(B) applies only to the direct appeal

of a criminal conviction; it does not apply to subsequent postconviction proceedings, including

motions to vacate sentence and hearings to determine the propriety of guilty pleas. State v.

Loomer, 76 Ohio St.3d 398, 667 N.E.2d 1209 (1996); State v. Bolton, 8th Dist. Cuyahoga No.

103628, 2017-Ohio-7062; State v. Gaston, 8th Dist. Cuyahoga No. 92242, 2009-Ohio-3080.

       {¶8} Accordingly, the App.R. 26(B) application for reopening is denied.
TIM McCORMACK, JUDGE

MARY EILEEN KILBANE, P.J., and
EILEEN T. GALLAGHER, J., CONCUR
