[Cite as State v. Austin, 2012-Ohio-1338.]




                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 87169



                                       STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                        KEVIN AUSTIN
                                                    DEFENDANT-APPELLANT



                                       JUDGMENT:
                                   APPLICATION DENIED


                               Cuyahoga County Common Pleas Court
                                      Case No. CR-445932
                                    Application for Reopening
                                       Motion No. 448790


        RELEASE DATE: March 27, 2012
FOR APPELLANT

Kevin Austin, pro se
Inmate No. 481-187
Grafton Correctional Institution
2500 S. Avon Belden Road
Grafton, OH 44044

ATTORNEYS FOR RESPONDENT

William D. Mason
Cuyahoga County Prosecutor

By: T. Allan Regas
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
MELODY J. STEWART, P J.:

       {¶1} In State v. Austin, Cuyahoga County Court of Common Pleas Case No.

CR-445932, applicant, Kevin Austin, pled guilty to aggravated murder with a one-year

firearm specification.   This court affirmed that judgment in State v. Austin, 8th Dist. No.

87169, 2006-Ohio-4120. The Supreme Court of Ohio denied applicant’s motion for

leave to appeal and dismissed the appeal as not involving any substantial constitutional

question. State v. Austin, 114 Ohio St.3d 1479, 2007-Ohio-3699, 870 N.E.2d 731.

       {¶2} Applicant has filed with the clerk of this court an application for reopening.

Applicant asserts that he was denied the effective assistance of appellate counsel because

appellate counsel did not assign as error that trial counsel was ineffective for failing “to

investigate defendant’s mental disorders, mental impairments and Post Traumatic Stress

Disorder * * * .”        (Capitalization in original.)   Application at 2.    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
August 21, 2006. The application was filed on October 24, 2011, clearly in excess of

the ninety-day limit.

       {¶5} Austin argues that he has good cause for the five-year delay in the filing of

his application. He avers that he has a long history of mental disorders which interfered

with his ability to file his application for reopening. He also states that he relied on the

advice of an inmate legal clerk to assist him in preparing this application.

       {¶6} The state has opposed Austin’s application and observes that, in 2008, he

filed pro se a motion for leave to withdraw his guilty plea and for resentencing in the

underlying case. Also, in 2009, Austin appealed pro se the denial of his motion for

leave to withdraw guilty plea and for resentencing.          This court affirmed.   State v.

Austin, 8th Dist. No. 93028, 2009-Ohio-6108.

       {¶7} The state contends that, if Austin was able to file and prosecute pro se both

his motion and an appeal on the merits in 2008 and 2009, he was capable of filing his

application for reopening no later than 2009.     Austin argues, however, that he required

the assistance of an inmate legal clerk to prepare his filings with the courts.

       {¶8} “Just as this court has ruled that misplaced reliance on an attorney does not

state sufficient good cause to justify untimely filing, so, too, misplaced reliance on a

fellow inmate who is not even an attorney must also fail to state good cause. Thus,

[applicant’s] application to reopen is denied as untimely.” State v. Sizemore, 126 Ohio

App.3d 143, 146, 709 N.E.2d 943 (8th Dist. 1998). Austin’s reliance on another inmate

does not, therefore, demonstrate good cause for the delay in filing this application for
reopening.

       {¶9} Austin also states that he “has suffered a long history of mental health issues,

which have prevented him from timely and properly raising these issues in a court of law,

in pursuit of his legal interests.” Application at 3. He indicates that “he suffers from

periods of disassociation from his primary personality due to schizoaffective disorder,”

Id., has post-traumatic stress disorder due to three head injuries in 1988 while serving in

the military and has been treated with psychiatric medications which affect his cognitive

ability.

       {¶10} In State v. Brooks, 8th Dist. No. 94978, 2011-Ohio-1679, reopening

disallowed, 2012-Ohio-915, the applicant argued that he had good cause for the untimely

filing of his application for reopening. Brooks stated that he had a mental health issue

which interfered with his ability to work on motions and that he requested help from other

inmates.     He also attached mental health assessments from the Department of

Rehabilitation and Correction (“ODRC”). This court noted that Brooks had submitted

unauthenticated records and had made other court filings pro se.             Also, ODRC

categorized Brooks’s condition “as ‘C2,’ non-serious mental illness, a lesser mental

impairment.” Id. at ¶ 10. This court concluded that Brooks had “not demonstrated that

his mental illness prevented him from timely filing the application.” As a consequence,

this court held “that Brooks’s claim of mental illness [did] not establish good cause for

the untimely filing of his application.” Id.

       {¶11} Austin has made essentially the same arguments as Brooks. Austin asserts
that his mental health issues have prevented him from being able to prepare a timely

application and that he has had to rely on the help of another inmate. Austin has also

submitted unauthenticated records regarding his various treatments and medications.

Among these is a “Mental Health Treatment Plan” which he identifies as being from the

ODRC. The “C Code” listed on the treatment plan is C2, the same non-serious mental

illness category as in Brooks. We must, therefore, conclude as this court did in Brooks

that Austin has not demonstrated that his mental health issues have prevented him from

filing a timely application for reopening.   As a consequence, we must hold that Austin

has failed to establish good cause for the untimely filing of his application for reopening.

       {¶12} 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). E.g., State v.

Gumm, 103 Ohio St.3d 162, 2004-Ohio-4755, 814 N.E.2d 861, and 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, e.g.,State

v. Almashni, 8th Dist. No. 92237, 2010-Ohio-898, reopening disallowed, 2012-Ohio-349.

       {¶13} As a consequence, applicant has not met the standard for reopening.

Accordingly, the application for reopening is denied.




MELODY J. STEWART, PRESIDING JUDGE

KENNETH A. ROCCO, J., and
KATHLEEN ANN KEOUGH, J., CONCUR
