[Cite as State v. Pruitt, 2012-Ohio-94.]


                 Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                                JOURNAL ENTRY AND OPINION
                                    Nos. 86707 and 86986




                                           STATE OF OHIO
                                                         PLAINTIFF-APPELLEE

                                                vs.

                            MICHAEL JARMAL PRUITT
                                                         DEFENDANT-APPELLANT



                                        JUDGMENT:
                                    APPLICATION DENIED

                                Cuyahoga County Common Pleas Court
                                       Case No. CR-451979
                                     Application for Reopening
                                        Motion No. 449412


        RELEASE DATE: January 11, 2012
FOR APPELLANT
Michael Jarmal Pruitt
Inmate No. 474-441
Allen Correctional Inst.
P.O. Box 4501
Lima, OH 45802-4501

ATTORNEYS FOR RESPONDENT
William D. Mason
Cuyahoga County Prosecutor
By: Mary McGrath
Assistant County Prosecutor
The Justice Center
1200 Ontario, 8th Floor
Cleveland, OH 44113
SEAN C. GALLAGHER, J.:

       {¶ 1} In State v. Pruitt, Cuyahoga County Court of Common Pleas Case No.

CR-451979, applicant, Michael Jarmal Pruitt, pled guilty to and was convicted of attempted

murder and having weapons while under disability.    This court affirmed that judgment in State

v. Pruitt, Cuyahoga App. Nos. 86707 and 86986, 2006-Ohio-4106. The Supreme Court of Ohio

did not accept Pruitt’s appeal for review.          State v. Pruitt, 111 Ohio St.3d 1494,

2006-Ohio-6171, 857 N.E.2d 1231.

       {¶ 2} Pruitt has filed with the clerk of this court an application for reopening.    He

asserts that he was denied the effective assistance of appellate counsel because his appellate

counsel did not assign as error on direct appeal two proposed assignments of error challenging

the propriety of his guilty plea. We deny the application for reopening. As required by App.R.

26(B)(6), the reasons for our denial follow.

       {¶ 3} Initially, we note that App.R. 26(B)(1) provides, in part: “An application for

reopening shall be filed * * * within ninety days from journalization of the appellate judgment

unless the applicant shows good cause for filing at a later time.” App.R. 26(B)(2)(b) requires
that an application for reopening include “a showing of good cause for untimely filing if the

application is filed more than ninety days after journalization of the appellate judgment.”

         {¶ 4} This court’s decision affirming Pruitt’s conviction was journalized on August 21,

2006.     The application was filed on November 15, 2011, more than five years after

journalization of this court’s opinion and clearly in excess of the 90-day limit.

         {¶ 5} Pruitt contends that his appellate counsel’s statement in a letter that counsel

“could find no issues to raise on appeal” and appellate “counsel’s failure to advise him of the

potential avenue for relief under App.R. 26(B)” constitute good cause for his delayed filing of the

application for reopening.      Application, Appendix 3 (emphasis in original) and page 3,

respectively.   It is well established, however, that reliance on counsel and asserting that

appellate counsel did not inform the appellant regarding filing an application for reopening under

App.R. 26(B) do not establish good cause for the untimely filing of an application for reopening.

 E.g.,    State v. Bess, Cuyahoga App. No. 91560, 2009-Ohio-2032, reopening disallowed,

2011-Ohio-5490, ¶3-4. Likewise, in this case, Pruitt’s contention that he relied on appellate

counsel’s analysis of his case and that appellate counsel did not inform him of the possibility of

filing an application for reopening do not demonstrate good cause for the delay in filing this

application.

         {¶ 6} The Supreme Court has upheld judgments denying applications for reopening

solely on the basis that the application was not timely filed and the applicant failed to show

“good cause for filing at a later time.” App.R. 26(B)(1).      E.g., State v. Gumm, 103 Ohio St.3d

162, 2004-Ohio-4755, 814 N.E.2d 861, and State v. LaMar, 102 Ohio St.3d 467,

2004-Ohio-3976, 812 N.E.2d 970. Pruitt’s failure to demonstrate good cause is a sufficient

basis for denying the application for reopening. See also State v. Collier (June 11, 1987),
Cuyahoga App. No. 51993, reopening disallowed 2005-Ohio-5797, Motion No. 370333, and

State v. Garcia (July 8, 1999), Cuyahoga App. No. 74427, reopening disallowed

2005-Ohio-5796, Motion No. 370916.

       {¶ 7} As a consequence, Pruitt has not met the standard for reopening.   Accordingly,

the application for reopening is denied.



                                                           SEAN C. GALLAGHER, JUDGE

MELODY J. STEWART, P.J., AND
EILEEN A. GALLAGHER, J., CONCUR
