[Cite as State v. Jones, 2013-Ohio-4695.]




                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 98209




                                       STATE OF OHIO
                                                          PLAINTIFF-APPELLEE

                                                    vs.

                                   DEMETRIUS JONES
                                                          DEFENDANT-APPELLANT


                                        JUDGMENT:
                                    APPLICATION DENIED


                              Cuyahoga County Court of Common Pleas
                                       Case No. CR-524453
                                    Application for Reopening
                                       Motion No. 465916

        RELEASED DATE:                      October 23, 2013
ATTORNEYS FOR APPELLANT

Rufus Sims
75 Public Square
Suite 1111
Cleveland, Ohio 44113

Robert Tobik
Cuyahoga County Public Defender

By: Erica B. Cunliffe
Assistant Public Defender
310 Lakeside Avenue
Suite 200
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Timothy McGinty
Cuyahoga County Prosecutor

By: Mark J. Mahoney
Katherine Mullin
Daniel T. Van
Assistant County Prosecutors
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, J.:

       {¶1} Demetrius Jones has filed an application for reopening pursuant to App.R.

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

8th Dist. Cuyahoga No. 98209, 2013-Ohio-572, which affirmed his conviction for

murder. His application is untimely, without establishing good cause for the delay, and

therefore must be denied.

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

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

appellate judgment that is subject to reopening. The Supreme Court of Ohio, with regard

to the 90-day deadline provided by App.R. 26(B)(2)(b), has established that

       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.

       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 90-day requirement in the rule is applicable to all
       appellants, State v. Winstead (1996), 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. Gumm, 103 Ohio St.3d 162, 2004-Ohio-4755, 814 N.E.2d 861, ¶ 7. 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.

       {¶3} The appellate judgment that Jones seeks to reopen was journalized on

February 21, 2013. The application for reopening was not filed until June 18, 2013, and

beyond the 90-day deadline for reopening.

       {¶4} Jones contends that there is good cause for his untimely filing based on the

fact that his appellate counsel continued to represent him in proceedings before the Ohio

Supreme Court.    Jones maintains that his appellate counsel cannot be expected to raise

his own ineffectiveness. This argument has been repeatedly raised and rejected, and it

does not constitute good cause for an untimely application.        Gumm at ¶ 3; State v.

Wilcox, 8th Dist. Cuyahoga No. 96079, 2013-Ohio-2895. Likewise, “the excuse that

[the applicant] and his attorneys were occupied with other appeals or that they simply

neglected to pay attention to the rule is not ‘good cause’ for missing the filing deadline.”

Id. Consequently, neither counsel’s mistake in calculating the deadline nor counsel’s

heavy caseload can establish the requisite good cause that would enable us to consider the

untimely application for reopening.

       {¶5} Jones has failed to establish “a showing of good cause” for the untimely

filing of his application for reopening. State v. Klein, 8th Dist. Cuyahoga No. 58389,
1991 Ohio App. LEXIS 1346 (Apr. 8, 1991), reopening disallowed (Mar. 15, 1994),

Motion No. 49260, aff’d, 69 Ohio St.3d 1481, 634 N.E.2d 1027 (1994); State v.

Trammell, 8th Dist. Cuyahoga No. 67834, 1995 Ohio App. LEXIS 2962 (July 24, 1995),

reopening disallowed (Apr. 22, 1996), Motion No. 70493; State v. Travis, 8th Dist.

Cuyahoga No. 56825, 1990 Ohio App. LEXIS 1356 (Apr. 5, 1990), reopening disallowed

(Nov. 2, 1994), Motion No. 51073,      aff’d, 72 Ohio St.3d 317, 1995-Ohio-152, 649

N.E.2d 1226. See also State v. Gaston, 8th Dist. Cuyahoga No. 79626, 2007-Ohio-155;

State v. Torres, 8th Dist. Cuyahoga No. 86530, 2007-Ohio-9.

      {¶6} Accordingly, the application for reopening is denied.




PATRICIA ANN BLACKMON, JUDGE

FRANK D. CELEBREZZE, JR., P.J., and
MARY EILEEN KILBANE, J., CONCUR
