[Cite as State v. Thomas, 2011-Ohio-6070.]




         Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                           JOURNAL ENTRY AND OPINION
                                    No. 94042




                                    STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                             vs.

                                 DAVID T. THOMAS
                                                   DEFENDANT-APPELLANT




                                   JUDGMENT:
                               APPLICATION DENIED


                          Cuyahoga County Common Pleas Court
                                  Case No.CR-520343
                               Application for Reopening
                                   Motion No. 448626
       RELEASE DATE: November 21, 2011

FOR APPELLANT

David T. Thomas, pro se
Inmate No. 573-140
Mansfield Correctional Inst.
P. O. Box 788
Mansfield, OH 44901

ATTORNEYS FOR RESPONDENT

William D. Mason
Cuyahoga County Prosecutor

By: Brian R. Radigan
Justice Center, 8th Fl.
1200 Ontario Street
Cleveland, OH 44113




EILEEN A. GALLAGHER, J.:

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

CR-520343, applicant was convicted of reckless homicide, tampering with evidence, and

having a weapon while under disability.      This court affirmed that judgment in State v.

Thomas, Cuyahoga App. No. 94042, 2010-Ohio-5237.         The Supreme Court of Ohio denied

applicant’s motion for leave to appeal and dismissed the appeal as not involving any

substantial constitutional question.     State v. Thomas, ___ Ohio St.3d ___, Case

Announcements, 2011-Ohio-647.

       {¶ 2} Applicant, David T. Thomas, 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 counsel did not assign as error that he was convicted of allied offenses of similar

import.     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 Thomas’s conviction was journalized on

October 28, 2010.      The application was filed on October 18, 2011, clearly in excess of the

90-day limit.

          {¶ 5} Thomas argues, however, that he has good cause for the delay.       He observes

that he filed a timely appeal to the Supreme Court of Ohio of this court’s judgment affirming

his conviction. “* * * Appellant believes that he would not have been able to bring his

appeal to the Supreme Court for purposes of Delayed appeal if he choose [sic] to first, file his

reopening to this Court.    Appellant further submits, that although this Court perhaps, would

have had original jurisdiction, however, S. Ct. Prac. Rules would foreclose the 90 day limit set

forth in App.R. 26(B), and therefore, establishes the ‘good cause’ as ‘a legally sufficient
reason’ pursuant to App.R. 26(B)(2)(b).”    Application, at 1-2 (capitalization in original).

       {¶ 6} In State v. Keith, 119 Ohio St.3d 161, 2008-Ohio-3866, 892 N.E.2d 912, the

supreme court affirmed the denial of Keith’s application for reopening as untimely and

observed: “(The court of appeals retained jurisdiction to consider Keith’s App.R. 26(B)

application, even though he had appealed to this court.           See S.Ct.Prac.R. II(2)(D)(1),

effective April 1, 1996.   Thus, the pendency of Keith’s appeal to this court did not toll the

time for filing his application in the court of appeals.)”      Id. ¶5 (parentheses in original)

[S.Ct.Prac.R. II(2)(D)(1) is now S.Ct. Prac. R. 2.2(D)(1)].

       {¶ 7} Likewise, in this case, the 90-day limit for filing an application for reopening

applied to Thomas even though he had filed a timely appeal to the supreme court.                As a

consequence, he has not established good cause for the untimely filing of his application for

reopening.

       {¶ 8} 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).     See, e.g., 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.        An applicant’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; State v. Garcia (July 8, 1999), Cuyahoga App. No. 74427, reopening disallowed

2005-Ohio-5796, Motion No. 370916.

       {¶ 9} We also note that the application for reopening is not supported by a sworn

statement of the basis of the claim for ineffective assistance of appellate counsel as required by

App.R. 26(B)(2)(d).    “In State v. Lechner, 72 Ohio St.3d 374, 1995-Ohio-25, 650 N.E.2d

449, the Ohio Supreme Court affirmed the denial of Lechner’s application solely on the basis

of his failure to comply with App.R. 26(B)(2)(d).       The Ohio Supreme Court ruled that the

inclusion of the sworn statement is mandatory.    Thus, its omission is sufficient reason to deny

the application.”   State v. Fortson, Cuyahoga App. No. 92337, 2010-Ohio-2337, reopening

disallowed, 2011-Ohio-698, ¶2.      Likewise, the failure of Thomas to support his application

with a sworn statement provides an additional ground for denying the application for

reopening.

       {¶ 10} As a consequence, applicant has not met the standard for reopening.

Accordingly, the application for reopening is denied.




EILEEN A. GALLAGHER, JUDGE.,

MARY EILEEN KILBANE, A.J., and
KENNETH A. ROCCO, J., CONCUR
