[Cite as State v. Ware, 2019-Ohio-146.]


                 Court of Appeals of Ohio
                                   EIGHTH APPELLATE DISTRICT
                                      COUNTY OF CUYAHOGA


                                  JOURNAL ENTRY AND OPINION
                                          No. 106176



                                            STATE OF OHIO

                                                        PLAINTIFF-APPELLEE

                                                  vs.

                                           DEVONTAE WARE

                                                        DEFENDANT-APPELLANT




                                              JUDGMENT:
                                          APPLICATION DENIED



                               Cuyahoga County Court of Common Pleas
                                     Case No. CR-17-613905-B
                                     Application for Reopening
                                         Motion No. 523010

        RELEASE DATE: January 14, 2019
FOR APPELLANT

Devontae Ware, pro se
Inmate No. 700959
Lake Erie Correctional Institution
P.O. Box 8000
501 Thompson Road
Conneaut, Ohio 44030


ATTORNEYS FOR APPELLEE

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


EILEEN A. GALLAGHER, P.J.:

       {¶1} Applicant, Devontae Ware, seeks to reopen his appeal where his conviction for

aggravated robbery was affirmed by this court in State v. Ware, 8th Dist. Cuyahoga No. 106176,

2018-Ohio-2294. Ware’s untimely application asserts that appellate counsel was ineffective for

failing to raise three proposed assignments of error: That his due process rights were violated,

that trial counsel was ineffective for not explaining his conviction carried a mandatory sentence

and that counsel misled him into believing that he was eligible for early release or community

control. We deny the application.

Factual and Procedural Background

       {¶2} Ware and codefendant, Nathaniel Hill, were charged with crimes related to the

robbery of a bank. Ware pled guilty to one count of aggravated robbery and was sentenced to a

seven-year prison term. Id. at  2-6. He appealed his sentence arguing that it was contrary to

law, it was disproportionate to his conduct and it was inconsistent with that of his codefendant.
On June 14, 2018, this court overruled his assignment of error and affirmed his conviction. Id.

at  24.

           {¶3} On November 16, 2018, Ware filed the instant application for reopening which the

state timely opposed.

Law and Analysis

           {¶4} App.R. 26(B) provides a limited opportunity for an applicant to reopen an appeal to

assert a claim that appellate counsel was ineffective. However, “App.R. 26(B)(2)(b) requires an

application filed more than ninety days after journalization of the appellate judgment sought to be

reopened to show good cause for the untimely filing.”      State v. Reddick, 72 Ohio St.3d 88, 90,

1995-Ohio-249, 647 N.E.2d 784. This deadline has been strictly applied. State v. LaMar, 102

Ohio St.3d 467, 2004-Ohio-3976, 812 N.E.2d 970,  9. The failure to establish good cause

requires this court to deny the application. State v. White, 8th Dist. Cuyahoga No. 101576,

2017-Ohio-7169,  6.

           {¶5} One hundred fifty-five days passed between the journalization of the appellate

decision and the filing of the application to reopen.     Therefore, Ware is required to establish

good cause for the untimely filing.

           {¶6} In an effort to show good cause, Ware asserts that he is actually innocent of the

charged crime and, therefore, the 90-day time limit for filing an application to reopen should be

excused. In support, he cites a number of federal cases including Schlup v. Delo, 513 U.S. 298,

115 S.Ct. 851, 120 L.Ed.2d 808 (1995) (dealing with successive habeas corpus petitions and

strong evidence of actual innocence); Souter v. Jones, 395 F.3d 577 (6th Cir.2005); Gildon v.

Bowen, 384 F.3d 883, 887 (7th Cir.2004); and Felder v. Johnson, 204 F.3d 168, 171 (5th

Cir.2000). However, these cases do not address the standards for good cause for an untimely

filed application to reopen an appeal under App.R. 26(B). A claim of innocence goes to the
merits of an application, not to good cause for delayed filing.   It does not have any bearing on

the ability of a person to timely file an application.

        {¶7} Further, Ware’s claim of actual innocence relies on evidence that was not in the

record before the trial court. Ware attached an affidavit to his application from his codefendant,

dated July 17, 2018. It averred that Ware was not involved in the robbery of the bank. This

new evidence was not part of the record before the trial court.      This purported new evidence

cannot properly support a claim that appellate counsel was ineffective. State v. Davis, 10th

Dist. Franklin No. 09AP-869, 2011-Ohio-1023,  27. Appellate counsel cannot be ineffective

for failing to raise and argue evidence that did not exist at the time of the appeal.   “Such an

argument could be proper for consideration in a post-conviction petition or perhaps a habeas

corpus petition, but not in the instant application to reopen.” Id. Therefore, Ware’s claim of

actual innocence is inappropriate for an application for reopening and does not constitute good

cause for untimely filing.

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




EILEEN A. GALLAGHER, PRESIDING JUDGE

MARY J. BOYLE, J., and
ANITA LASTER MAYS, J., CONCUR
