[Cite as State v. Austin, 2020-Ohio-26.]

                                COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA

STATE OF OHIO,                                   :

                 Plaintiff-Appellee,             :
                                                              No. 105981
                 v.                              :

JAMES AUSTIN,                                    :

                 Defendant-Appellant.            :


                                 JOURNAL ENTRY AND OPINION

                 JUDGMENT: APPLICATION DENIED
                 RELEASED AND JOURNALIZED: January 8, 2020


                            Cuyahoga County Court of Common Pleas
                                  Case No. CR-16-608502-A
                                  Application for Reopening
                                      Motion No. 533096


                                           Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Mary M. Frey, Assistant Prosecuting
                 Attorney, for appellee.

                 James Austin, pro se.


EILEEN T. GALLAGHER, A.J.:

                   Applicant, James Austin, seeks to reopen his appeal, State v. Austin,

8th Dist. Cuyahoga No. 105981, 2019-Ohio-1983. In his application for reopening,

he asserts five proposed assignments of error:
      I. Appellant was denied effective assistance of appellate counsel due to
      counsel’s failure to argue that appellant was denied due process when
      his plea was not knowing, voluntarily, and intelligently made related to
      the inadequate explanation of post-release [sic] control.

      II. The trial court erred to the prejudice of appellant when it failed to
      adequately inform appellant of the constitutional rights waived as a
      result of a guilty plea.

      III. Appellant was denied effective assistance of appellate counsel due
      to counsel’s failure to argue that appellant was denied due process
      when his plea was not knowing, voluntarily, and intelligently made
      related to the inadequate explanation of post-release [sic] control and
      the nature and number of the charges prior to the acceptance of the
      plea; specifically count nine.

      IV. Appellant did not receive the effective assistance of counsel when
      counsel failed to appeal the issue of the plea having never been properly
      accepted, prior to sentencing, by the trial court.

      V. Appellant did not receive the effective assistance of counsel when
      counsel failed to appeal the issue of the plea having never been properly
      accepted, prior to sentencing, by the trial court.

Austin’s application is untimely without a showing of good cause. Therefore, it is

denied.

                       I.     Procedural and Factual History

              On August 16, 2016, Austin was indicted and charged with numerous

crimes, including aggravated burglary, kidnapping, aggravated robbery, robbery,

intimidation of a crime victim or witness, carrying concealed weapons, improperly

handling firearms in a motor vehicle, receiving stolen property, and having weapons

while under disability. In the midst of a jury trial, as part a negotiated plea deal,

Austin retracted his former not guilty pleas and pled guilty to two counts of

aggravated burglary, one count of kidnapping, two counts of intimidation of a crime
victim or witness, one count of having weapons while under disability, and one count

of carrying concealed weapons. The remaining counts were dismissed, and the court

proceeded immediately to sentencing.        An aggregate eight-year sentence was

imposed by the court on June 19, 2017.

              Austin timely appealed. Austin’s attorney filed a brief pursuant to

Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1976), and

requested to withdraw from the case. This court, in its independent review of the

record, found nonfrivolous issues that could be asserted on appeal, and appointed

new counsel to file a brief on Austin’s behalf. New counsel filed a brief asserting a

single assignment of error:

      The plea bargain must be vacated or specifically enforced because the
      appellant was promised an eight-year sentence, which the court agreed
      to enter, and the court instead of honoring that agreement imposed
      eight years plus five years postrelease control. Appellant’s guilty pleas
      were thus not knowingly, voluntarily, and intelligently entered and
      Crim.R. 11 was violated as well as the Fifth, Sixth, and Fourteenth
      Amendments of the federal Constitution.

Austin, 8th Dist. Cuyahoga No. 105981, 2019-Ohio-1983, at ¶ 1. On May 23, 2019,

this court rejected this assignment of error and affirmed Austin’s convictions and

sentence. Id. at ¶ 25-26.

              On October 24, 2019, Austin filed the instant application for

reopening, along with a motion for leave to file his application for reopening. In the

motion for leave he attempted to set forth good cause for the untimely filing of his

application, something that must be done within the application itself. App.R.

26(B)(2)(b). In the application itself, Austin put forth a condensed argument about
why his application could not be timely filed, and raised the aforementioned five

proposed assignments of error; many of which are variations on the assignment of

error raised in the direct appeal. The state filed a timely brief in opposition pointing

out that Austin’s application was untimely without a sufficient showing of good

cause. Austin filed a reply to the state’s brief in opposition, which was stricken by

this court. App.R. 26(B) does not provide for the filing of a reply brief, but instead

requires the applicant to make arguments in a single application that does not

exceed ten pages. App.R. 26(B)(4).

                                 II.    Law and Analysis

                         A. Timeliness of the Application

               App.R. 26(B) provides a limited means of asserting a claim of

ineffective assistance of appellate counsel in a criminal appeal. State v. Gumm, 103

Ohio St.3d 162, 2004-Ohio-4755, 814 N.E.2d 861. The rule provides that an

application must be filed within 90 days of the date of journalization of the appellate

decision. App.R. 26(B)(1). This deadline is strictly applied. Gumm at ¶ 7. See also

State v. Lamar, 102 Ohio St.3d 467, 2004-Ohio-3976, 812 N.E.2d 970. Where an

application is filed outside of that deadline, the applicant must show good cause to

excuse the delay in filing. App.R. 26(B)(1).

               The application itself, limited to ten pages by App.R. 26(B)(4), must

set forth good cause for untimely filing. State v. Glaze, 8th Dist. Cuyahoga No.

105519, 2018-Ohio-4772, ¶ 8. Contrary to this rule, Austin attempted to establish

good cause in a separate motion for leave to file the untimely application. Austin’s
application exceeds the ten-page limitation in that his signature block extends to the

eleventh page. As Austin’s application already technically exceeds the ten-page

limit, this court will not consider the arguments raised in the motion for leave to file

the application for reopening. See State v. Woods, 8th Dist. Cuyahoga No. 82789,

2014-Ohio-296. Austin does set forth a cursory argument in the application for the

delayed filing supported by his affidavit. Therefore, this court will analyze the

reasons for the delayed filing in the application to determine whether Austin has

established good cause.

               Austin asserts that on August 6, 2019, he was removed from prison

and transported to county jail with no reason given to him. According to his

affidavit, Austin was transported back to prison on September 7, 2019. Including

the days of transportation, Austin spent 33 days outside of prison in county jail. He

claims that he was unable to complete his application while in county jail for lack of

resources.

               Normally, lack of access to legal materials or records does not

constitute good cause. Glaze at ¶ 10; Woods at ¶ 5. Therefore, Austin’s transfer to

county jail does not constitute good cause. However, even assuming this could

constitutes good cause, “‘good cause can excuse the lack of a filing only while it

exists, not for an indefinite period.’” Gumm, 103 Ohio St.3d 162, 2004-Ohio-4755,

814 N.E.2d 861, ¶ 9, quoting State v. Fox, 83 Ohio St.3d 514, 516, 700 N.E.2d 1253

(1998).
               154 days elapsed between the issuance of the appellate decision and

the filing of the application. Subtracting the 33 days Austin spent in county jail and

days in transit from the total elapsed time, Austin’s application was still not filed

within 90 days. Austin does not explain why his application could not have been

timely filed when this 33 days is excluded from the calculus. Austin’s assertions of

good cause relate only to his brief transfer from prison to county jail and back again.

Austin has failed to show good cause for the untimely filing of his application. As

such, it is denied.

               Application denied.



                                      ___
EILEEN T. GALLAGHER, ADMINISTRATIVE JUDGE

SEAN C. GALLAGHER, J., and
LARRY A. JONES, SR., J., CONCUR
