[Cite as State v. McGowan, 2011-Ohio-6254.]




         Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                           JOURNAL ENTRY AND OPINION
                                    No. 91183




                                   STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                               JOSEPH MCGOWAN
                                                    DEFENDANT-APPELLANT




                                  JUDGMENT:
                              APPLICATION DENIED


                          Cuyahoga County Common Pleas Court
                                  Case No. CR-498474
                               Application for Reopening
                                   Motion No. 449080


       RELEASE DATE: December 7, 2011

FOR APPELLANT

Joseph McGowan
Inmate #542-985
Mansfield Correctional Inst.
P. O. Box 788
Mansfield, OH 44901

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

COLLEEN CONWAY COONEY, J.:

       {¶ 1} On November 3, 2011, the applicant, Joseph McGowan, pursuant to App.R.

26(B) and State v. Murnahan (1992), 63 Ohio St.3d 60, 584 N.E.2d 1204, applied to reopen

this court’s judgment in State v. McGowan (Oct. 15, 2008), Cuyahoga App. No. 91183, in

which this court dismissed McGowan’s appeal for failure to file a brief.   McGowan seems to

be claiming that his appellate counsel should have argued the following: (1) trial counsel was

ineffective for not adequately defending and advising McGowan, (2) his guilty plea was not

knowing and voluntary because of his mental problems and lack of psychiatric medicines, and
(3) the trial court failed to safeguard his rights.   On November 7, 2011, the prosecution filed
                                                  1




its brief in opposition.   For the following reasons, this court denies the application.

        {¶ 2} In July 2007, the grand jury indicted McGowan on two counts of aggravated

murder with a felony murder specification, two counts of aggravated robbery, two counts of

aggravated burglary, and one count of kidnapping, all with one- and three-year firearm

specifications.    Thus, McGowan faced the death penalty.

        {¶ 3} In February 2008, McGowan, his attorneys, and the prosecution agreed to a plea

bargain under which McGowan would plead guilty to one count of aggravated murder and one

count of aggravated burglary, the state would nolle all specifications and other counts,

McGowan would testify for the state, and the court would impose an agreed prison term of 25

years to life.    During the plea hearing on February 21, 2008, McGowan answered the judge’s

questions and apologized for his role in the murder.      The judge imposed the agreed sentence.

 Subsequently,      in his codefendant’s trial, McGowan testified as to his knowledge of and

participation in the murder. State v. Pettway, Cuyahoga App. No. 91716, 2009-Ohio-4544.

        {¶ 4} The trial court appointed appellate counsel for McGowan, and that counsel

timely filed the appeal sub judice.    After reviewing the file and meeting with McGowan, that

attorney filed an Anders brief and sought leave to withdraw as counsel.          On June 18, 2008,


          It is difficult to discern McGowan’s arguments because he presents long, rambling
        1


sentences. The transcript of his guilty plea and sentencing revealed that he has an I.Q. of 68 and was
on two psychiatric medications at the time. A defense psychologist opined that McGowan was
competent to enter a plea.
this court granted the motion to withdraw and gave McGowan leave until July 25, 2008, to file

a pro se brief.    McGowan twice moved to extend the time to file his brief, and this court gave

him until September 30, 2008.       When no brief or further motions were forthcoming, this

court dismissed the appeal for failure to file a brief on October 15, 2008.

       {¶ 5} App.R. 26(B)(1) and (2)(b) require applications claiming ineffective assistance

of appellate counsel to be filed within 90 days from journalization of the decision unless the

applicant shows good cause for filing at a later time.     The November 2011 application was

filed approximately three years after this court’s decision.    Thus, it is untimely on its face.

In an effort to establish good cause, McGowan argues that institutional transfers, limited

access to the library, security problems, and limited access to the record prevented him from

timely filing an application to reopen.   However, these do not state good cause.     The courts

have repeatedly rejected the claim that limited access to legal materials states good cause for

untimely filing.    Prison riots, lockdowns, and other library limitations have been rejected as

constituting good cause. State v. Tucker, 73 Ohio St.3d 152, 1995-Ohio-2, 652 N.E.2d 720;

State v. Kaszas (Sept. 10, 1998), Cuyahoga App. Nos. 72547 and 72547, reopening disallowed

(Aug. 14, 2000), Motion No. 316752; State v. Hickman (Apr. 30, 1998), Cuyahoga App. No.

72341, reopening disallowed (Dec. 13, 2000), Motion No. 320830; and State v. Turner (Nov.

16, 1989), Cuyahoga App. No. 55960, reopening disallowed (Aug. 20, 2001), Motion No.

323221.
         {¶ 6} This court has repeatedly ruled that lack of a transcript does not state good

cause for an untimely filing. State v. Lawson, Cuyahoga App. No. 84402, 2005-Ohio-880,

reopening disallowed, 2006-Ohio-3839; State v. Blackmon (July 18, 1985), Cuyahoga App.

No. 48787, reopening disallowed, (Oct. 25, 2000), Motion No. 318768; State v. Houston (Jan.

13, 1994), Cuyahoga App. No. 64574, reopening disallowed (Feb. 15, 1995), Motion No.

259344, affirmed (1995), 73 Ohio St.3d 346, 652 N.E.2d 1018; State v. Morgan (Mar. 16,

1989), Cuyahoga App. No. 55341, reopening disallowed, 2007-Ohio-5532; State v. Collins

(June 22, 1995), Cuyahoga App. No. 67165, reopening disallowed (Feb. 10, 1997), Motion

No. 277984; and State v. Booker (July 29, 1993), Cuyahoga App. No. 62841, reopening

disallowed (Dec. 30, 1996), Motion No. 278561.

         {¶ 7} Moreover, these excuses do not explain the lapse of three years.    In State v.

Davis, 86 Ohio St.3d 212, 214, 1999-Ohio-160, 714 N.E.2d 384, the Supreme Court of Ohio

addressed a similar long lapse of time in filing the App.R. 26(B) application and ruled: “Even

if we were to find good cause of earlier failures to file, any such good cause ‘has long since

evaporated.    Good cause can excuse the lack of a filing only while it exists, not for an

indefinite period.’   State v. Fox, 83 Ohio St.3d 514, 516, 1998-Ohio-517, 700 N.E.2d 1253,

1254.”    Furthermore, this court notes that in examining the docket in State v. McGowan,

Cuyahoga County Common Pleas Court Case No. CR-498474, McGowan has been “flooding”

the common pleas court since July 2009 with motions to vacate, motions to withdraw guilty
plea, motions for appointment of counsel, and other such motions.

       {¶ 8} Finally, an application to reopen pursuant to App.R. 26(B) is the wrong remedy.

 Subsection (B)(1) states this remedy’s scope: “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.”   Because McGowan was representing himself in

the appeal when this court dismissed the appeal, he is now precluded from arguing ineffective

assistance of appellate counsel. State v. Boone (1996), 114 Ohio App.3d 275, 683 N.E.2d

67; State v. Vines (Sept. 14, 1989), Cuyahoga App. No. 55693 and (Nov. 3, 2000), Cuyahoga

App. No. 78691, reopening disallowed (June 5, 2003), Motion No. 347277; State v. Smith

(Dec. 10, 2001), Cuyahoga App. No. 79292, reopening disallowed (Mar. 8, 2002), Motion No.

336058; and State v. Jackson, Cuyahoga App. No. 80118, 2002-Ohio-5461.           As the United

States Supreme Court noted in Faretta v. California (1975), 422 U.S. 806, 834, fn. 46, 95 S.Ct.

2525, “a defendant who elects to represent himself cannot thereafter complain that the quality

of his own defense amounted to a denial of ‘effective assistance of counsel.’”

       {¶ 9} Accordingly, this court denies the application to reopen.



COLLEEN CONWAY COONEY, J.,

LARRY A. JONES, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
