[Cite as State v. Johnson, 2018-Ohio-5151.]


                 Court of Appeals of Ohio
                                   EIGHTH APPELLATE DISTRICT
                                      COUNTY OF CUYAHOGA


                                  JOURNAL ENTRY AND OPINION
                                          No. 105612



                                              STATE OF OHIO

                                                         PLAINTIFF-APPELLEE

                                                   vs.

                                        ZACHARY JOHNSON

                                                         DEFENDANT-APPELLANT




                                            JUDGMENT:
                                        APPLICATION DENIED



                              Cuyahoga County Court of Common Pleas
                                    Case No. CR-16-608678-A
                                    Application for Reopening
                                        Motion No. 519237

        RELEASE DATE: December 19, 2018
FOR APPELLANT

Zachary Johnson, pro se
Inmate No. 694028
Mansfield Correctional Institution
P.O. Box 788
Mansfield, Ohio 44901


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
By: Maxwell Martin
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113


MARY EILEEN KILBANE, P.J.:

       {¶1} On July 12, 2018, the applicant, Zachary Johnson, pursuant to App.R. 26(B), applied

to reopen this court’s judgment in State v. Johnson, 8th Dist. Cuyahoga No. 105612,

2018-Ohio-1389, in which this court affirmed his convictions for aggravated murder, murder,

attempted murder, discharging a firearm at or near a prohibited premises, two counts of having a

weapon while under disability, and four counts of felonious assault. Johnson now argues that

his appellate counsel should have argued: (1) there was insufficient evidence of prior calculation

and design to support the conviction of aggravated murder, (2) the indictments failed to give

sufficient notice of the charges, and (3) trial counsel was ineffective for failing to argue that the

cell-phone evidence violated his Fourth Amendment Rights, based upon Carpenter v. United

States, 585 U.S. _____, 138 S.Ct. 2206, 201 L.Ed.2d 507 (2018), which was decided on June 22,
2018. On July 30, 2018, the state of Ohio filed its brief in opposition. For the following

reasons, this court denies the application.

       {¶2} 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 issued its decision on April 12,

2018, and Johnson filed his application one day late on July 12, 2018 (18 (remaining days in

April) + 31 (May) + 30 (June) + 12 (July) = 91).      Thus, this application is untimely.   Johnson

did not proffer any explanation to show good cause.

       {¶3} The Supreme Court of Ohio 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, held that the 90-day deadline for filing must be strictly enforced. In those

cases the applicants argued that after the court of appeals decided their cases, their appellate

counsel continued to represent them, and their appellate counsel could not be expected to raise

their own incompetence.      Although the Supreme Court agreed with this latter principle, it

rejected the argument that continued representation provided good cause. In both cases, the

court ruled that the applicants could not ignore the ninety-day deadline, even if it meant retaining

new counsel or filing the applications themselves. The court then reaffirmed the principle that

lack of effort, imagination, and ignorance of the law do not establish good cause for complying

with this fundamental aspect of the rule. As a corollary, miscalculation of the time needed for

mailing would also not state good cause. State v. Winstead, 74 Ohio St.3d 277, 1996-Ohio-52,

658 N.E.2d 722, is particularly instructive.        Winstead sought to file his App.R. 26(B)

application to reopen and hired an overnight courier to deliver it.   However, the courier filed it a

day late.   The Supreme Court of Ohio affirmed the denial of the application as untimely,
because the courier’s delay was not good cause and because there was no denial of due process or

equal protection in applying a rule applicable to all appellants. See also State v. Agosto, 8th

Dist. Cuyahoga No. 87283, 2006-Ohio-5011, reopening disallowed, 2007-Ohio-848; State v.

Ellis, 8th Dist. Cuyahoga No. 91116, 2009-Ohio-852, reopening disallowed, 2009-Ohio-2875;

State v. Peyton, 8th Dist. Cuyahoga No. 86797, 2006-Ohio-3951, reopening disallowed,

2007-Ohio-263 (App.R. 26(B) application to reopen denied as untimely because it was filed two

days late).

        {¶4} Accordingly, this court denies the application to reopen.




MARY EILEEN KILBANE, PRESIDING JUDGE

TIM McCORMACK, J., and
EILEEN T. GALLAGHER, J., CONCUR
