[Cite as State v. Wilcox, 2013-Ohio-2895.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA

                          ___________________________________

                             JOURNAL ENTRY AND OPINION
                                       No. 96079
                          ___________________________________


                                      STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                       ISSAC WILCOX
                                                    DEFENDANT-APPELLANT




                                       JUDGMENT:
                                   APPLICATION DENIED


                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-540046
                                   Application for Reopening
                                      Motion No. 464832

RELEASE DATE:              July 1, 2013
FOR APPELLANT

Issac Wilcox, pro se
Inmate No. 593-138
Mansfield Correctional Institution
P.O. Box 788
Mansfield, OH 44901


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
By: Kristen L. Sobieski
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, OH 44113
SEAN C. GALLAGHER, J.:

       {¶1} On May 9, 2013, the applicant, Issac Wilcox, applied pursuant to App.R.

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

court’s judgment in State v. Wilcox, 8th Dist. No. 96079, 2011-Ohio-5388, in which this

court affirmed Wilcox’s convictions for kidnapping with a three-year firearm

specification, domestic violence, having a weapon under disability, and four counts of

aggravating menacing.     Wilcox argues that his appellate counsel was ineffective for

failing to raise various issues, including hearsay evidence and prosecutorial misconduct.

On June 10, 2013, 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. The May 2013

application was filed approximately 19 months after this court’s decision. Thus, it is

untimely on its face.   In an effort to establish good cause, Wilcox argues that after the

appeal, his family retained an attorney to file, inter alia, the App.R. 26(B) application, but

the attorney never filed the application in the ensuing year.            The client-counsel

relationship terminated no later than January 2013.         Thus, Wilcox argues that his

misplaced reliance on the attorney provides good cause for the untimely filing.

       {¶3} However, reliance on counsel does not state good cause.        In State v. White,

8th Dist. No. 57944, 1991 Ohio App. LEXIS 357 (Jan. 31, 1991), reopening disallowed
(Oct. 19, 1994), motion No. 249174; and State v. Allen, 8th Dist. No. 65806, 1994 Ohio

App. LEXIS 4956 (Nov. 3, 1994), reopening disallowed (July 8, 1996), motion No.

267054, this court rejected reliance on counsel as showing good cause.      In State v. Rios,

75 Ohio App.3d 288, 599 N.E.2d 374 (8th Dist.1991), reopening disallowed (Sept. 18,

1995), motion No. 266129, Rios maintained that the untimely filing of his application for

reopening was primarily caused by the ineffective assistance of appellate counsel; again,

this court rejected that excuse.

       {¶4} Moreover, 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 courts of appeals decided

their cases, their appellate lawyers continued to represent them, and their appellate

lawyers 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, lack

of   imagination, and ignorance of the law do not establish good cause for failure to seek

timely relief under App.R. 26(B).       Thus, Wilcox’s misplaced reliance on his new

counsel does not state good cause.

       {¶5} Accordingly, this court denies the application to reopen.
SEAN C. GALLAGHER, JUDGE

MELODY J. STEWART, A.J., and
MARY J. BOYLE, J., CONCUR
