[Cite as State v. King, 2013-Ohio-2088.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA

                          ___________________________________

                            JOURNAL ENTRY AND OPINION
                                       No. 97904
                         ___________________________________


                                       STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                           DAEMON KING
                                                     DEFENDANT-APPELLANT




                                        JUDGMENT:
                                    APPLICATION DENIED


                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-549881
                                   Application for Reopening
                                      Motion No. 464339

        RELEASE DATE: May 22, 2013
APPELLANT

Daemon King, pro se
Inmate No. 621-822
Belmont Correctional Institution
P.O. Box 540
St. Clairsville, Ohio 43950


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
Diane Russell
Daniel T. Van
Assistant County Prosecutors
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.:

       {¶1} Applicant, Daemon King, pled guilty and was sentenced on convictions of

carrying a concealed weapon, trafficking in cocaine, and a firearm specification.

Applicant, through counsel, pursued an appeal. We affirmed the trial court’s judgment

in State v. King, 8th Dist. No. 97904, 2012-Ohio-4161. Applicant now seeks to reopen

the appeal pursuant to App.R. 26(B).

       {¶2} The appellate judgment was journalized on September 13, 2012.                 The

application for reopening was not filed until April 23, 2013. This falls well outside the

time limits of App.R. 26(B)(1), which 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.

(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, 1995-Ohio-328, 653 N.E.2d 252; State v.

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

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

application for reopening. He argues that good cause exists for the untimely filing

because he was relying on his retained counsel to pursue an appeal to the Ohio Supreme

Court and “raise everything that should have been raised on appeal.” Applicant asserts

that he did not do any research until after the Ohio Supreme Court declined to accept his

appeal. It is well settled that neither of these reasons offered by applicant qualify as

good cause for filing an application pursuant to App.R. 26(B) outside the 90-day time

period.

      {¶5} An appellate court retains jurisdiction to consider an application to reopen

even though the applicant has an appeal pending in the Supreme Court. State v. Davis,

119 Ohio St.3d 422, 2008-Ohio-4608, 894 N.E.2d 1221, ¶ 21, 22 (Rules of Practice of the

Supreme Court allow appellate courts to consider App.R. 26(B) applications even after an

appeal to the Supreme Court is perfected.) Therefore, the fact that the applicant pursued

an appeal to the Ohio Supreme Court does not establish grounds for filing an untimely
application in this court pursuant to App.R. 26(B).

         {¶6} Applicant’s remaining excuses are also unavailing. Ignorance of the law or

lack of effort or imagination do not automatically establish good cause for failure to seek

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

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

“cannot rely on his own alleged lack of legal training to excuse his failure to comply with

the deadline.” Id. Finally, reliance upon appellate counsel does not establish good

cause for the untimely filing of an application for reopening. State v. Alt, 8th Dist. No.

96289, 2012-Ohio-2054; see also State v. Hudson, 8th Dist. No. 91803, 2010-Ohio-2879,

at *2.

         {¶7} Applicant has not established good cause for filing an untimely application

for reopening and it is therefore denied.




MARY EILEEN KILBANE, JUDGE

KENNETH A. ROCCO, P.J., and
EILEEN A. GALLAGHER, J., CONCUR
