[Cite as State v. Smith, 2014-Ohio-5048.]
                            STATE OF OHIO, MAHONING COUNTY

                                  IN THE COURT OF APPEALS

                                        SEVENTH DISTRICT


STATE OF OHIO                                 )    CASE NO. 10 MA 172
                                              )
        PLAINTIFF-APPELLEE                    )
                                              )
VS.                                           )    OPINION AND
                                              )    JUDGMENT ENTRY
TIMOTHY D. SMITH                              )
                                              )
        DEFENDANT-APPELLANT                   )

CHARACTER OF PROCEEDINGS:                          Appellant’s Motion for Delayed
                                                   Reopening
                                                   Case No. 09 CR 619

JUDGMENT:                                          Denied.

APPEARANCES:

For Plaintiff-Appellee:                            Atty. Paul J. Gains
                                                   Mahoning County Prosecutor
                                                   Atty. Ralph M. Rivera
                                                   Assistant Prosecuting Attorney
                                                   21 West Boardman Street, 6th Floor
                                                   Youngstown, Ohio 44503

For Defendant-Appellant:                           Timothy D. Smith, Pro se
                                                   #593-376
                                                   Noble Correctional Institution
                                                   15708 McConnellsville Road
                                                   Caldwell, Ohio 43724

JUDGES:

Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Mary DeGenaro
                                                   Dated: November 7, 2014
[Cite as State v. Smith, 2014-Ohio-5048.]
WAITE, J.


        {¶1}     On June 11, 2014, Appellant Timothy D. Smith filed a delayed

application to reopen this Court’s judgment in State v. Smith, 7th Dist. No. 10 MA

172, 2012-Ohio-2722 in which we affirmed his convictions on aggravated robbery,

kidnapping, and failure to comply with an order or signal of a police officer while

fleeing the commission of a felony.         App.R. 26(B) requires that applications for

reopening be filed within ninety days of the journalization of the appellate judgment or

provide good cause to explain the delay.            The decision affirming Appellant’s

convictions was journalized on June 13, 2012.          Appellant’s application was filed

approximately two years beyond the ninety-day period.               Appellant offers no

explanation for the delay.

        {¶2}     An explanation containing good cause for any delay in filing an

application for reopening is required by App.R. 26(B)(2):

        An application for reopening shall contain all of the following:


        ***


        (b) A showing of good cause for untimely filing if the application is filed

        more than ninety days after journalization of the appellate judgment.

Where an applicant does not comply with App.R. 26 the application is considered to

be incomplete and we need not reach its merits. State v. Reddick, 72 Ohio St.3d 88,

64 N.E.2d 784 (1995) (Appellant must show good cause, Appellant did not show

good cause and court of appeals correctly denied his application to reopen appeal).
                                                                                     -2-

       {¶3}   Appellant bases his application for reopening on a claim of ineffective

assistance of counsel, citing State v. McDonald, 137 Ohio St.3d 517, 2013-Ohio-

5042 and State v. Morgan, 2010-Ohio-461 as they pertain to alleged defects in

verdict forms. Appellant has attached copies of some of the verdict forms used in his

trial. Even if Appellant had filed a timely request for reopening, it does not present a

colorable claim of ineffective assistance of appellate counsel.        Reddick, supra;

McDonald, supra. When evaluating the effectiveness of appellate counsel, we are to

determine whether counsel’s performance fell below an objective standard of

reasonableness and whether there is reasonable probability the result of the appeal

would have been different but for serious error. See State v. Were, 120 Ohio St.3d

85, 2008-Ohio-5277, 896 N.E.2d 699, ¶10-11, citing Strickland v. Washington, 466

U.S. 668, 687-688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Appellant has the

burden of demonstrating a “genuine issue” and establishing a “colorable claim” of

ineffective assistance of appellate counsel. Id. at ¶11.

       {¶4}   In conducting this evaluation, we bear in mind that appellate counsel

has the discretion to choose which issues to address on appeal and need not raise

every possible issue in order to render constitutionally effective assistance. State v.

Tenace, 109 Ohio St.3d 451, 2006-Ohio-2987, 849 N.E.2d 1, ¶7, citing Jones v.

Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983). This discretion

is necessary because an attempt to raise every possible issue in the limited page

allowance may very well result in dilution of the force of the stronger arguments. Id.

at 751-752. “Experienced advocates since time beyond memory have emphasized
                                                                                   -3-

the importance of winnowing out weaker arguments on appeal”.              Id. at 751.

Counsel’s decision as to this issue is entitled to strong deference as there is a wide

range of reasonable professional assistance. State v. Smith, 95 Ohio St.3d 127,

2002-Ohio-1753, 766 N.E.2d 588, ¶8.

      {¶5}   Assuming we could reach the merits here, Appellant’s argument that

counsel rendered ineffective assistance by electing to challenge the sufficiency and

the weight of the evidence against him rather than the form of the verdict sheets

clearly fails. The defect addressed by the Supreme Court in McDonald is patently

absent from this record. In McDonald, the requisite finding as to the possibility of

physical harm was not separately submitted to the jury. In Appellant’s case, the

finding that Appellant was fleeing the commission of a robbery and/or kidnapping

was, in fact, separately submitted to the jury. Counsel is not required to make futile

arguments and there is no indication in this record that this argument could be

successful. State v. Noling, 98 Ohio St.3d 44, 781 N.E.2d 88 (2002).

      {¶6}   A review of Appellant’s application reflects the absence of an

explanation of good cause for the two-year delay in filing.      Appellant’s untimely

motion for reopening is denied.

Waite, J., concurs.

Donofrio, J., concurs.

DeGenaro, P.J., concurs.
