[Cite as State v. Pointer, 2014-Ohio-2258.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                   Nos. 77294 and 85195



                                       STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                      DENNIS POINTER
                                                    DEFENDANT-APPELLANT




                                        JUDGMENT:
                                    APPLICATION DENIED


                             Cuyahoga County Court of Common Pleas
                                    Case No. CR-93-294529
                                   Application for Reopening
                                 Motion Nos. 473636 and 473702


        RELEASE DATE: May 28, 2014
FOR APPELLANT

Dennis W. Pointer
Inmate No. 0169-139
P.O. Box 5600
Cleveland, Ohio 44101


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By: Diane Smilanick
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN T. GALLAGHER, J.:

       {¶1} Dennis Pointer has filed an application for reopening pursuant to App.R.

26(B). Pointer is attempting to reopen the appellate judgments, rendered by this court in

State v. Pointer, 8th Dist. Cuyahoga No. 77294 (Dec. 17, 1999) and State v. Pointer, 8th

Dist. Cuyahoga No. 85195, 2005-Ohio-3587. For the following reasons, Pointer’s

application for reopening is not well taken.

       {¶2} Initially, we find that App.R. 26(B) is not applicable to the facts pertinent to

the appeal in App. No. 77294. No appellate judgment, which reviewed Pointer’s plea of

guilty to the offenses of murder and sexual battery, has been announced and journalized

by this court. This court denied Pointer’s motion for a delayed appeal on December 17,

1999. Thus, we are prevented from considering Pointer’s application for reopening.

State v. Skaggs, 8th Dist. Cuyahoga No. 76301, 1999 Ohio App. LEXIS 4680 (Sept. 21,

1999). See also State v. Loomer, 76 Ohio St.3d 398, 667 N.E.2d 1209 (1996); State v.

Halliwell, 8th Dist. Cuyahoga No. 70369, 1999 Ohio App. LEXIS 285 (Jan. 28, 1999);

State v. Fields, 8th Dist. Cuyahoga No. 68906, 1997 Ohio App. LEXIS 4109 (Sept. 5,

1997); State v. Williams, 8th Dist. Cuyahoga No. 69936, 1996 Ohio App. LEXIS 4796

(Oct. 31, 1996).

       {¶3} In addition, an application for reopening may be granted by this court only

upon a showing that there exists a genuine issue as to whether the applicant was deprived

of the effective assistance of appellate counsel on appeal. See App.R. 26(B)(5). Since
no appellate counsel was involved in App. No. 85195, Pointer cannot establish a claim of

ineffective assistance of appellate counsel. State v. McCauley, 8th Dist. Cuyahoga No.

81328, 2005-Ohio-6093. Pointer is also precluded from arguing his own ineffectiveness

on appeal vis-a-vis his pro se representation. State v. Boone, 114 Ohio App.3d 275, 683

N.E.2d 67 (7th Dist. 1996); State v. Henderson, 8th Dist. Cuyahoga No. 95655,

2013-Ohio-2524; State v. Jackson, 8th Dist. Cuyahoga No. 80118, 2002-Ohio-5461.

      {¶4} It must also be noted that an applicant is permitted to file only one application

for reopening with regard to an appeal. Pointer has already filed an App.R. 26(B)

application for reopening, with regard to App. No. 85195, on March 18, 2014. Neither

App.R. 26(B) nor State v. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204 (1992),

provides for second and subsequent applications for reopening. State v. Cooey, 99 Ohio

St.3d 345, 2003-Ohio-3914, 792 N.E.2d 720; State v. Williams, 99 Ohio St.3d 179,

2003-Ohio-3079, 790 N.E.2d 299; State v. Richardson, 74 Ohio St.3d 235, 658 N.E.2d

273 (1996).

      {¶5} Finally, App.R. 26(B)(2)(b) requires that Pointer establish a showing of good

cause for untimely filing if the application for reopening is filed more than 90 days after

journalization of the appellate judgment, which is subject to reopening. Herein, Pointer

is attempting to reopen the appellate judgments journalized on December 17, 1999, and

July 25, 2005. Pointer’s application for reopening was not filed until April 1, 2014, more

than 90 days after journalization of the appellate judgments in App. No. 77294 and App.

No. 85195. Pointer has failed to establish good cause for the untimely filing of his
application for reopening. Thus, we are required to deny his application for reopening.

State v. Gumm, 103 Ohio St.3d 162, 2004-Ohio-4755, 814 N.E.2d 861; State v. LaMar,

102 Ohio St.3d 467, 2004-Ohio-3976, 812 N.E.2d 970; State v. Cooey, supra.

      {¶6} Application for reopening is denied.



EILEEN T. GALLAGHER, JUDGE

LARRY A. JONES, SR., P.J., and
MELODY J. STEWART, J., CONCUR
