[Cite as State v. Moore, 2014-Ohio-3223.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 57223



                                      STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                       JERRY MOORE
                                                    DEFENDANT-APPELLANT




                                       JUDGMENT:
                                   APPLICATION DENIED


                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-227207
                                   Application for Reopening
                                      Motion No. 475010

        RELEASE DATE: July 18, 2014
FOR APPELLANT

Jerry Moore, pro se
Inmate No. 207-625, RI.C.I.
P.O. Box 8107
Mansfield, Ohio 44901

ATTORNEY FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.:

      {¶1} Jerry Moore has filed an application for reopening pursuant to App.R.

26(B). Moore is attempting to reopen the appellate judgment rendered in State v. Moore,

8th Dist. Cuyahoga No. 57223, 1990 Ohio App. LEXIS 3305 (Aug. 9, 1990), which

affirmed his conviction for murder.     For the reasons that follow, the application is

denied.

      {¶2} The appellate judgment was journalized in 1990.            The application for

reopening was not filed until May 19, 2014. This falls well outside the time limits of

App.R. 26(B)(1), which requires applications to be filed within 90 days after

journalization of the appellate judgment. The only exception that would permit us to

review an untimely application is if applicant establishes good cause for filing at a later

time. Id.

      {¶3} The Supreme Court of Ohio, with regard to the 90-day deadline provided by

App.R. 26(B)(2)(b), has firmly established that

      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. [The 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, 74 Ohio St.3d 277, 278, 1996-Ohio-52, 658 N.E.2d 722,
      and [the applicant] offers no sound reason why he — unlike so many other
      Ohio criminal defendants — could not comply with that fundamental aspect
      of the rule.
State v. LaMar, 102 Ohio St.3d 467, 2004-Ohio-3976, 812 N.E.2d 970, ¶ 7-9. “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.” State v. Gumm, 103 Ohio St.3d 162, 2004-Ohio-4755, 814 N.E.2d 861, ¶

7.

       {¶4} Applicant argues that good cause exists for this delayed filing because he

was represented by the same attorney at trial and on appeal who could not be expected to

argue counsel’s own ineffectiveness.       The Ohio Supreme Court has addressed this

argument and established that “good cause can excuse the lack of a filing only while it

exists, not for an indefinite period.”        State v. Fox, 83 Ohio St.3d 514, 516,

1998-Ohio-517, 700 N.E.2d 1253. Moore could have retained new attorneys after his

appeal was decided in 1990, or he could have filed an application for reopening on his

own. Instead he has waited over 20 years to apply for the reopening of his appeal.

There has been ample opportunity for this applicant to file an application for reopening

before now, and he has failed to establish good cause for the delayed filing. Gumm at ¶

3; see also State v. Conlon, 8th Dist. Cuyahoga No. 80411, 2014-Ohio-107.
     {¶5} Accordingly, the application for reopening is denied.




MARY EILEEN KILBANE, PRESIDING JUDGE

PATRICIA A. BLACKMON, J., and
MELODY J. STEWART, J., CONCUR
