[Cite as State v. Koreisl, 2011-Ohio-6438.]




              Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 90950




                                        STATE OF OHIO
                                                        PLAINTIFF-APPELLEE

                                              vs.

                                        MARK KOREISL
                                                    DEFENDANT-APPELLANT




                                        JUDGMENT:
                                    APPLICATION DENIED


                            Cuyahoga County Common Pleas Court
                                    Case No. CR-502332
                                 Application for Re-opening
                               Motion Nos. 449097 and 450082


     RELEASE DATE: December 13, 2011
FOR APPELLANT
Mark Koreisl, pro se
Inmate No.: A542166
Trumbull County Correctional Inst.
5701 Burnett
Leavittsburg, OH 44430

ATTORNEYS FOR RESPONDENT

William D. Mason
Cuyahoga County Prosecutor

By: Pinkey S. Carr
Asst. County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113

MARY EILEEN KILBANE, J.:

      {¶ 1} Mark Koreisl has filed an application for reopening pursuant to

App.R. 26(B).     Koreisl is attempting to reopen the appellate judgment, as

rendered in State v. Koreisl, Cuyahoga App. No. 90950, 2009-Ohio-1238, which

affirmed his conviction and sentence for the offenses of rape, gross sexual

imposition, and importuning. We decline to reopen Koreisl’s appeal.

      {¶ 2} App.R. 26(B)(2)(b) requires that Koreisl establish “a showing of good

cause for untimely filing if the application is filed more than 90 days after

journalization of the appellate judgment,” which is subject to reopening. The

Supreme Court of Ohio, with regard to the 90-day deadline as provided by App.R.

26(B)(2)(b), has firmly established that:

      {¶ 3} “We now reject [applicant’s] claim that those excuses gave him good

cause to miss the 90-day deadline in App.R. 26(B). The rule was amended to
include the 90-day deadline more than seven months before [applicant’s] appeal

of right was decided by the court of appeals in February 1994, so the rule was

firmly established then, just as it is today.    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.

      {¶ 4} “Ohio    and    other   states      ‘may   erect    reasonable   procedural

requirements for triggering the right to an adjudication,’ Logan v. Zimmerman

Brush Co. (1982), 455 U.S. 422, 437, 102 S.Ct. 1148, 71 L.Ed.2d 265, and that is

what Ohio has done by creating a 90-day deadline for the filing of applications to

reopen. [Applicant] could have retained new attorneys after the court of appeals

issued its decision in 1994, or he could have filed the application on his own.

What he could not do was ignore the rule’s filing deadline. * * * The 90-day

requirement in the rule is ‘applicable to all appellants,’ State v. Winstead (1996),

74 Ohio St.3d 277, 278, 658 N.E.2d 722, and Gumm offers no sound reason why

he – unlike so many other Ohio criminal defendants – could not comply with that

fundamental aspect of the rule.” (Emphasis added.)             State v. Gumm, 103 Ohio

St.3d 162, 2004-Ohio-4755, 814 N.E.2d 861, at ¶7.

      {¶ 5} See, also, State v. LaMar, 102 Ohio St.3d 467, 2004-Ohio-3976, 812

N.E.2d 970; State v. Cooey, 73 Ohio St.3d 411, 1995-Ohio-328, 653 N.E.2d 252;

State v. Reddick, 72 Ohio St.3d 88, 1995-Ohio-249, 647 N.E.2d 784.
      {¶ 6} Herein, Koreisl is attempting to reopen the appellate judgment that

was journalized on March 19, 2009. The application for reopening was not filed

until November 3, 2011, more than 90 days after journalization of the appellate

judgement in State v. Koreisl, supra. In an attempt to establish “good cause” for

the untimely filing of his application for reopening, Koreisl argues that he relied

upon appellate counsel and was unable to obtain his appellate file.            Koreisl,

however, has failed to raise or establish “good cause” for the untimely filing of his

application for reopening.

      {¶ 7} “Good cause” does not include reliance upon appellate counsel,

difficulty in obtaining a transcript, and limited access to legal materials.   State v.

Hudson, Cuyahoga App. No. 91803, 2009-Ohio-6454, reopening disallowed,

2010-Ohio-2979, Motion No. 434149.            In addition, lack of knowledge or

ignorance of the time constraint, applicable to an application for reopening per

App.R. 26(B), does not provide sufficient cause for untimely filing.    State v. Klein

(Mar. 28, 1991), Cuyahoga App. No. 58389, reopening disallowed (Mar. 15,

1994), Motion No. 249260, affirmed (1994), 69 Ohio St.3d 1481; State v.

Trammell (July 13, 1995), Cuyahoga App. No. 67834,             reopening disallowed

(Apr. 22, 1996), Motion No. 270493; State v. Travis (Apr. 5, 1990), Cuyahoga

App. No. 56825,      reopening disallowed (Nov. 2, 1994), Motion No. 251073,

affirmed (1995), 72 Ohio St.3d 317. See, also, State v. Torres, Cuyahoga App.

No. 86530, 2006-Ohio-3696, reopening disallowed, 2007-Ohio-9, Motion No,

390254; State v. Gaston (Feb. 7. 2002), Cuyahoga App. No. 79626, reopening
disallowed (Jan 17,2007), Motion No. 391555.

      {¶ 8} The failure to establish “good cause” mandates that this court deny

the application for reopening.   State v. White (Jan. 31, 1991), Cuyahoga App.

No. 57944, reopening disallowed (Oct. 19, 1994), Motion No. 249174; State v.

Allen (Nov. 3, 1994), Cuyahoga App. No. 65806, reopening disallowed (July 8,

1996), Motion No. 267054. See, also, State v. Moss (May 13, 1993), Cuyahoga

App. Nos. 62318 and 62322, reopening disallowed (Jan. 16, 1997), Motion No.

275838; State v. McClain (Aug. 3, 1995), Cuyahoga App. No. 67785, reopening

disallowed (Apr. 15, 1997), Motion No. 276811; State v. Russell (May 9, 1996),

Cuyahoga App. No. 69311, reopening disallowed (June 16, 1997), Motion No.

282351.

      {¶ 9} Accordingly, Koreisl’s application for reopening is denied.




MARY EILEEN KILBANE, PRESIDING JUDGE

LARRY A. JONES, J., and
EILEEN A. GALLAGHER, J., CONCUR
