[Cite as State v. Jarrett, 2014-Ohio-488.]



                  Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                                JOURNAL ENTRY AND OPINION
                                         No. 98759


                                        STATE OF OHIO

                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                 KENNETH L. JARRETT
                                                       DEFENDANT-APPELLANT




                                         JUDGMENT:
                                     APPLICATION DENIED


                          Cuyahoga County Court of Common Pleas
                  Case Nos. CR-554504, CR-558789, CR-559105, CR-559365,
                     CR-559433, CR-559935, CR-562138, and CR-562549
                                 Application for Reopening
                                    Motion No. 469750


RELEASE DATE:                February 11, 2014
FOR APPELLANT

Kenneth L. Jarrett, pro se
Inmate No. 630-619
Noble Correctional Institution
15708 McConnelsville Road
Caldwell, OH 43724


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: Mary McGrath
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 8th Floor
Cleveland, OH 44113
MELODY J. STEWART, J.:

        {¶1} On November 8, 2013, Kenneth Jarrett, filed a “Motion for leave to file

delayed appeal 26(B).”1 In this motion, Jarrett asks that this court order his former

lawyer to provide him with the transcripts so he “can better perfect [his] claims” and that

this court delay the time for filing his App.R. 26(B) application to reopen until he has

received the transcript.       Jarrett also submitted an affidavit in which he claims that his

appellate counsel was ineffective for not arguing the following:                  (1) the state breached

the plea agreement by not remaining silent during the sentencing as agreed, (2) the plea

agreement was voidable in part regarding one claim of restitution, and (3) some of the

counts should have merged as allied offenses.2 Thus, it is uncertain whether Jarrett is

trying to reopen this court’s judgment in State v. Jarrett, 8th Dist. Cuyahoga No. 98759,

2013-Ohio-1663, or trying to toll the time for filing his App.R. 26(B) application. On

November 26, 2013, the state of Ohio filed a memorandum in opposition, and Jarrett filed

a reply on December 16, 2013. For the following reasons, this court denies the motion

and/or the application to reopen.


        This filing concerns only App.R. 26(B), an application to reopen.           It is not a request for a
        1


delayed appeal pursuant to App.R. 5.

           Jarrett pled guilty in eight different cases to charges of fraud, forgery, identity fraud, identity
        2


theft, grand theft, attempted grand theft, and possession of criminal tools. Appellate counsel argued
that the trial court erred in imposing consecutive sentences because the total financial harm to the
victims — $22,590 — did not justify consecutive sentences. This court affirmed reasoning that
Jarrett’s conduct, including 16 prior felony convictions and the harm inflicted on the victims, was
sufficiently serious to warrant consecutive sentences.
       {¶2} To the extent that Jarrett is trying to toll the time for filing an application to

reopen until he gets the transcripts, such an effort is ineffective.   In State v. Allen, 8th

Dist. Cuyahoga No. 92482, 2010-Ohio-9, reopening disallowed, 2011-Ohio-588, Allen

endeavored to toll the time for filing by submitting a “Notice of intent to file Criminal

Rule 26(B)” and complaining that he had not yet been able to obtain his transcripts.

This court rejected his attempt; the rules do not allow such a “notice” and the Supreme

Court of Ohio has insisted on strictly enforcing the 90-day deadline.           Furthermore,

Jarrett has already tried to toll the time for filing an application to reopen, and this court

denied his motion for extension of time on July 23, 2013 (Motion No. 466799).

       {¶3} To the extent that Jarrett has submitted an App.R. 26(B) application to

reopen, it is untimely.     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. This

court decided Jarrett’s case on April 25, 2013. Thus, his November 8, 2013 application

is untimely on its face.   In an effort to show good cause or “restart” the clock, Jarrett

states that he needs the transcripts to “better perfect” his claims, that his attorney refused

to send him the transcripts, and that this court’s administrator has not helped him to get

his attorney to send him the transcript, despite Jarrett’s requests.    However, lack of a

transcript does not state good cause for an untimely filing.     State v. Lawson, 8th Dist.

Cuyahoga No. 84402, 2005-Ohio-880, reopening disallowed, 2006-Ohio-3839; and State

v. Henderson, 8th Dist. Cuyahoga No. 95655, 2012-Ohio-1040, reopening disallowed,
2013-Ohio-2524.     Nor does the lack of help from court employees state good cause.

Newburgh Hts. v. Chauncey, 8th Dist. Cuyahoga No. 75465, 2000 Ohio App. LEXIS

6261 (Oct. 20, 2000).

       {¶4} In his reply, Jarrett admits that these excuses do not state good cause for

untimely filing. He then argues that Ohio’s enforcement of the 90-day limitations period

is so strict that good cause does not exist and that such strictness violates due process.

The Supreme Court of Ohio implicitly addressed this argument in State v. LaMar, 102

Ohio St.3d 467, 2004-Ohio-3976, 812 N.E.2d 970, and State v. Gumm, 103 Ohio St.3d

162, 2004-Ohio-4755, 814 N.E.2d 861. Citing Logan v. Zimmerman Brush Co., 455

U.S 422, 437, 102 S.Ct. 1148, 71 L.Ed.2d 265, the court noted that states “may erect

reasonable requirements for triggering the right to an adjudication.”    Ohio did that “by

creating a 90-day deadline for the filing of applications to reopen.” LaMar at ¶ 7.

“Consistent enforcement of the rule’s deadline by the appellate courts in Ohio protects on

the one hand the state’s legitimate interest in the finality of its judgments and ensures on

the other hand that any claims of ineffective assistance of appellate counsel are promptly

examined and resolved.” Gumm at ¶ 7.         Strict enforcement of the rule is appropriate

for what is essentially a “second crack at the apple.”

       {¶5} Jarrett admits that he knew he wanted to raise additional arguments from at

least April 25, 2013. Thus, he should have filed, if necessary, a pro se application

within the 90 days; “[w]hat he could not do was ignore the rule’s filing deadline.”

LaMar at ¶ 7. In conclusion, Jarrett “offers no sound reason why he — unlike so many
other Ohio criminal defendants — could not comply with that fundamental aspect of the

rule.” Id. at ¶ 9.

       {¶6} Accordingly, this court denies Jarrett’s motion and/or application to reopen.




MELODY J. STEWART, JUDGE

MARY J. BOYLE, A.J., and
MARY EILEEN KILBANE, J., CONCUR
