[Cite as State v. Brown, 2011-Ohio-3577.]




                Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA




                              JOURNAL ENTRY AND OPINION
                                      No. 95048



                                      STATE OF OHIO
                                                 PLAINTIFF-APPELLEE

                                                 vs.

                                     VERNON BROWN
                                                 DEFENDANT-APPELLANT



                                      JUDGMENT:
                                  APPLICATION DENIED


                              Cuyahoga County Common Pleas Court
                                     Case No. CR-447563
                                   Application for Reopening
                                      Motion No. 445321

RELEASE DATE:                July 19, 2011
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FOR APPELLANT

Vernon Brown, pro se
Trumbull Correctional Institution
Inmate No. A-482-002
Post Office Box 901
Leavittsburg, Ohio 44430


ATTORNEY FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113



MARY J. BOYLE, J.:

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

CR-447563, applicant, Vernon Brown, was found guilty by a jury and convicted of   two

counts of murder with firearm specifications; robbery with a firearm specification;

carrying a concealed weapon; and having a weapon while under disability.   This court

affirmed that judgment in State v. Brown, Cuyahoga App. No. 93007, 2010-Ohio-2460.

The Supreme Court of Ohio denied Brown’s motion for leave to appeal and dismissed the

appeal as not involving any substantial constitutional question. State v. Brown, 126

Ohio St.3d 1601, 2010-Ohio-4928, 935 N.E.2d 47.

      {¶ 2} On April 19, 2010, the trial court denied Brown’s motion to waive or stay

imposition of court costs. Brown appealed, and this court affirmed.   State v. Brown,
                                            3
Cuyahoga App. No. 95048, 2011-Ohio-1096.            The Supreme Court of Ohio denied

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

substantial constitutional question.        State v. Brown, 128 Ohio St.3d 1559,

2011-Ohio-2905, 949 N.E.2d 45.

         {¶ 3} Brown has filed with the clerk of this court an application for reopening of

this court’s judgment affirming the denial of his motion to waive or stay imposition of

court costs.    He asserts that he was denied the effective assistance of appellate counsel

because his appellate counsel did not assign the trial court’s imposition of court costs as

error.    We deny the application for reopening.     As required by App.R. 26(B)(6), the

reasons for our denial follow.

         {¶ 4} Initially, we note that App.R. 26(B)(1) provides, in part:   “A defendant in

a criminal case may apply for reopening of the appeal from the judgment of conviction

and sentence, based on a claim of ineffective assistance of appellate counsel.”

(Emphasis added.) Brown appealed his conviction and sentence in Case No. 93007. In

Case No. 95048, which gives rise to this application for reopening, Brown appeals the

denial of his motion to waive or stay imposition of court costs. App.R. 26(B) reopening

“applies only to appeals from the judgment of conviction and sentence and not other

collateral matters arising in a criminal case * * * .” State v. Gaston, Cuyahoga App. No.

92242, 2009-Ohio-3080, reopening disallowed, 2009-Ohio-4715, ¶3. Reopening is not,

therefore, appropriate in this case.
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       {¶ 5} Additionally, 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.”

       {¶ 6} This court's decision affirming the denial of his motion to waive or stay

imposition of court costs was journalized on March 10, 2011. The application was filed

on June 14, 2011. Brown contends that his application was timely and asserts that it was

filed 89 days after journalization.    He does not, however, provide this court with any

argument or evidence that there is good cause for his application being filed more than 90

days after journalization.      That is, the application was actually filed 96 days after

journalization of this court’s judgment in Case No. 95048.1

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

reopening solely on the basis that the application was not timely filed, and the applicant


       1

                     Days            Month
                21       March
                30       April
                31       May
                14       June
                96       TOTAL
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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. 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.

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

Accordingly, the application for reopening is denied.




____________________________________
MARY J. BOYLE, JUDGE

MELODY J. STEWART, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
