[Cite as State v. Howell, 2011-Ohio-3683.]


          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA



                                JOURNAL ENTRY AND OPINION
                                         No. 92827



                                        STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                                   vs.


                                      GEORGE HOWELL

                                                    DEFENDANT-APPELLANT




                                        JUDGMENT:
                                    APPLICATION DENIED


                                Cuyahoga County Common Pleas Court
                                       Case No. CR-510229
                                     Application for Reopening
                                        Motion No. 445701

RELEASE DATE:              July 25, 2011
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ATTORNEY FOR APPELLANT

George Howell, pro se
Inmate No. A-561-889
Mansfield Correctional Institution
P.O. Box 788
Mansfield, Ohio 44901

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

By: Mary McGrath
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113




EILLEN A. GALLAGHER, J.:

       {¶ 1} In State v. Howell, Cuyahoga County Court of Common Pleas

Case No. CR-510229, applicant, George Howell, was found guilty by a jury of:

 aggravated robbery with firearm and forfeiture specifications; two counts of

felonious assault with firearm and forfeiture specifications; and having

weapons while under disability with a forfeiture specification.   This court

affirmed that judgment in State v. Howell, Cuyahoga App. No. 92827,

2010-Ohio-3403. The Supreme Court of Ohio affirmed that judgment “on the
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authority of State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d

768.” In re Cases Held for the Decision in State v. Hodge, 128 Ohio St.3d 234,

2011-Ohio-228.

      {¶ 2} Howell has filed with the clerk of this court an application for

reopening.   He asserts that appellate counsel was ineffective and did not

assign as error the trial court’s failure to hold a hearing “to examine the jury

to determine misconduct that would cause a mistrial.” Application at 3. We

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

reasons for our denial follow.

      {¶ 3} Initially, 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.”

      {¶ 4} This   court’s decision affirming applicant’s conviction was

journalized on July 22, 2010. The application was filed on June 28, 2011,

clearly in excess of the 90-day limit.

      {¶ 5} Howell avers that he was unable to file a timely application

because: “Appellate counsel failed to give me a copy of my trial transcripts * *
                                      4

* .” Affidavit of George Howell, ¶1. In State v. Day, Cuyahoga App. No.

83138,   2004-Ohio-1449,     reopening      disallowed,   2010-Ohio-3862,   the

applicant’s “assertions regarding his inability to secure transcripts through

his appellate counsel * * * [were] not sufficient to establish good cause for

failure to file a timely application for reopening.” Id. ¶6. Likewise, we must

also conclude that Howell’s inability to gain access to his appellate transcript

does not demonstrate good cause for failing to file a timely application.

      {¶ 6} The Supreme Court has upheld judgments denying applications

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

the applicant 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.

      {¶ 7} Additionally, on direct appeal, this court granted Howell leave to

file a pro se brief. He filed a brief with a supplemental assignment of error.

State v. Howell, Cuyahoga App. No. 92827, 2010-Ohio-3403, ¶1 and 41.

“[T]he courts have repeatedly ruled that res judicata bars an application to
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reopen when the appellant has filed a pro se brief.”       (Citations deleted.)

State v. Wright, Cuyahoga App. Nos. 92594 and 95096, 2010-Ohio 243 and

2011-Ohio-733, reopening disallowed, 2011-Ohio-2657, ¶4.        The fact that

Howell filed a pro se brief and assignment of error on direct appeal provides a

sufficient basis for denying reopening.

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

 Accordingly, the application for reopening is denied.



EILEEN A. GALLAGHER, JUDGE

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