[Cite as State v. Kimbrough, 2012-Ohio-4931.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA



                              JOURNAL ENTRY AND OPINION
                                      No. 97568


                                     STATE OF OHIO
                                                 PLAINTIFF-APPELLEE

                                                 vs.

                            MICHAEL C. KIMBROUGH
                                                 DEFENDANT-APPELLANT



                                     JUDGMENT:
                                 APPLICATION DENIED



                              Cuyahoga County Common Pleas Court
                                     Case No. CR-546878
                                   Application for Reopening
                                      Motion No. 459002

RELEASE DATE:               October 24, 2012
FOR APPELLANT

Michael C. Kimbrough, pro se
Inmate No. 620-083
Lorain Correctional Institution
2075 South Avon Belden Road
Grafton, Ohio 44044


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Scott Zarzycki
          Mark J. Mahoney
Assistant County Prosecutors
9th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, P.J.:

       {¶1} On Friday, September 28, 2012, the applicant, pursuant to App.R. 26(B)

and State v. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204 (1992), applied to reopen this

court’s judgment in State v. Kimbrough, 8th Dist. No. 97568, 2012-Ohio-2927, in which

this court affirmed Kimbrough’s convictions and sentences for rape, kidnapping, and

felonious assault.1 Kimbrough now argues that his appellate counsel was ineffective for

not arguing that the trial judge did not properly inform him about postrelease control and

that the trial judge did not properly justify consecutive sentences. On October 9, 2012,

the state of Ohio filed its brief in opposition. For the following reasons, this court

denies the application to reopen.

       {¶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.            In the present

case, this court journalized its decision on June 28, 2012, and Kimbrough filed his

application on September 28, 2012, two days beyond the 90-day limitation. (Two days




       1  The grand jury indicted Kimbrough for multiple counts of rape, attempted rape, kidnapping,
gross sexual imposition, and felonious assault. He pleaded guilty to one count each of rape,
kidnapping, and felonious assault. The trial judge merged kidnapping and felonious assault as allied
offenses and sentenced Kimbrough to nine years each on rape and kidnapping to run consecutively.
On appeal, he argued that his plea was not knowingly, intelligently, and voluntarily made and that all
three charges should have been merged.
in June, plus 31 days in July, plus 31 days in August, plus 28 days in September, equals

92 days.) Thus, it is untimely on its face. Kimbrough does not proffer any 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 90-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 failure to seek

timely relief under App.R. 26(B).     Moreover, this court has denied applications to

reopen even if they are filed only two days late. State v. Gray, 8th Dist. No. 90981,

2009-Ohio-4360.

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



______________________________________
MARY J. BOYLE, PRESIDING JUDGE

COLLEEN CONWAY COONEY, J., and
MARY EILEEN KILBANE, J., CONCUR
