[Cite as State v. Gray, 2012-Ohio-3565.]




                  Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA



                               JOURNAL ENTRY AND OPINION
                                       No. 92646



                                       STATE OF OHIO
                                                        PLAINTIFF-APPELLEE

                                                  vs.

                                       RICARDO GRAY
                                                            DEFENDANT-APPELLANT



                                     JUDGMENT:
                                 APPLICATION DENIED

                               Cuyahoga County Court of Common Pleas
                                        Case No. CR-369837
                                     Application for Reopening
                                         Motion No. 454323

        RELEASE DATE:                 August 3, 2012
                                    -i-




FOR APPELLANT, PRO SE

Ricardo Gray
Inmate No. 368-431
Richland Correctional Institution
P.O. Box 8107
Mansfield, Ohio 44901


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

Kristen L. Sobieski
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, A.J.:

       {¶1} Ricardo Gray has filed an application for reopening pursuant to App.R. 26(B).

Gray seeks to reopen the appellate judgment rendered in State v. Gray, 8th Dist. No.

92646, 2010-Ohio-11, which affirmed his conviction for murder and felonious assault. We

decline to grant the application for reopening.

       {¶2}   App.R. 26(B)(2)(b) requires that Gray 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 provided by App.R. 26(B)(2)(b), has firmly established that:

       We now reject [the applicant’s] claims that those excuses gave good cause to
       miss the 90-day deadline in App.R. 26(B). 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, 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.(Emphasis added.) State v. Gumm, 103 Ohio St.3d 162,
       2004-Ohio-4755, 814 N.E.2d 861, at ¶ 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-248, 647 N.E.2d 784.

       {¶3} Gray is attempting to open the appellate judgment journalized on January 7,

2010. The application for reopening was not filed until April 18, 2012, more than 90 days

after journalization of the appellate judgment in Gray. Gray has failed in his effort to

establish “good cause,” with regard to the untimely filing of his application for reopening.

 Defendant’s pursuit of other remedies, including an appeal to the Supreme Court of Ohio,

is an election of remedies, and thus does not provide good cause for a late filing of his

application to reopen his judgment. State v. Hornack, 8th Dist. No. 81021,

2005-Ohio-5843. Likewise, neither misplaced reliance on counsel nor lack of

communication between counsel and appellant       provides good cause for a late filing of

his application for reopening.    See State v. Alt, 8th Dist. No. 96289, 2012-Ohio-2054;

State v. Austin, 8th Dist. No. 87169, 2012-Ohio-1338; State v. Alexander, 8th Dist No.

81529, 2004-Ohio-3861.

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




PATRICIA ANN BLACKMON, ADMINISTRATIVE JUDGE

COLLEEN CONWAY COONEY, J., and
KATHLEEN ANN KEOUGH, J., CONCUR
