[Cite as State v. Fulton, 2013-Ohio-2087.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 96156



                                       STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                      ROMEO FULTON
                                                    DEFENDANT-APPELLANT




                                        JUDGMENT:
                                    APPLICATION DENIED


                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-537192
                                   Application for Reopening
                                      Motion No. 464815

        RELEASE DATE: May 20, 2013
APPELLANT

Romeo Fulton
Inmate No. 594-228
Mansfield Correctional Institution
P.O. Box 788
Mansfield, Ohio 44901

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
Marc D. Bullard
Assistant County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, P.J.:

        {¶1} On May 9, 2013, 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. Fulton, 8th Dist. No. 96156, 2011-Ohio-4259, in which this court

affirmed Fulton’s convictions and sentences on multiple counts of aggravated robbery,

robbery, and kidnapping with three-year firearm specifications. Id. at ¶ 23. Fulton

received an aggregate prison sentence of six years. Id. at ¶ 24.

        {¶2} Fulton maintains that his appellate counsel was ineffective for not arguing

additional sentencing issues, including challenges to the proportionality and consistency

of the sentence he received with reference to R.C. 2929.11(B).         For the following

reasons, this court denies the application to reopen.

        {¶3} 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 August 25, 2011, and Fulton filed his

application on May 9, 2013, well beyond the 90-day limitation. Thus, it is untimely on its

face.

        {¶4} Fulton does not argue or identify any basis for good cause that would allow

this court to consider his untimely application for reopening.

        {¶5} 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.

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




MARY J. BOYLE, PRESIDING JUDGE

SEAN C. GALLAGHER, J., and
EILEEN A. GALLAGHER, J., CONCUR
