[Cite as State v. Brown, 2012-Ohio-5703.]


         Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 77572


                                    STATE OF OHIO
                                                  PLAINTIFF-APPELLEE

                                            vs.


                                        JERRY BROWN

                                                  DEFENDANT-APPELLANT




                                        JUDGMENT:
                                    APPLICATION DENIED


                     Cuyahoga County Common Pleas Court
                            Case No. CR-373957
                          Application for Reopening
                             Motion No. 460073
        RELEASE DATE: November 30, 2012


ATTORNEY FOR APPELLANT
G. Michael Goins
10803 Lake Avenue
Suite 201
Cleveland, Ohio 44102


ATTORNEYS FOR APPELLEE

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




FRANK D. CELEBREZZE, JR., P.J.:

       {¶1} On November 9, 2012, the applicant, Jerry Brown, pursuant to

App.R. 26(B), applied to reopen this court’s judgment in State v. Brown, 8th

Dist. No. 77572, 2001 Ohio App. LEXIS 2082, in which this court affirmed

Brown’s convictions and sentences for ten counts of rape, but vacated the

finding that he was a violent sexual predator. 1                   Brown asserts that his

appellate counsel should have argued (1) that the trial court erred in not

allowing defense counsel the opportunity to examine the victim’s mental state

and (2) that his trial counsel was ineffective for failing to raise the issue of the



       1 This court ruled that the violent sexual predator specification was inapplicable to Brown
because the rapes occurred before the effective date of R.C. 2941.148 that established the
victim’s mental state. On November 14, 2012, 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 November 2012 application was filed approximately 11 years and six

months after this court announced its decision. Thus, it is untimely on its

face. Brown implicitly argues lack of funds as good cause for untimely filing.

The memorandum in support of the application states that Brown’s family

had just recently become able to retain legal counsel for this remedy.

However, the courts of Ohio have ruled that lack of funds and lack of counsel

do not provide good cause.           State v. Brooks, 8th Dist. No. 94978,

2011-Ohio-1679, reopening disallowed, 2012-Ohio-915. 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 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 reaffirmed the principle that lack of effort,



specification.
imagination, and ignorance of the law do not establish good cause for failure

to seek timely relief under App.R. 26(B).

      {¶3} Moreover, the lapse of 11 years is too long. In State v. Davis, 86

Ohio St.3d 212, 214, 1999-Ohio-160, 714 N.E.2d 384, the Supreme Court of

Ohio addressed a similar long lapse of time in filing the App.R. 26(B)

application and ruled: “Even if we were to find good cause of earlier failures

to file, any such good cause ‘has long since evaporated.       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, 1254.”

      {¶4} App.R. 26(B)(2)(d) requires an applicant to include a “sworn

statement of the basis for the claim that appellate counsel’s representation

was deficient with respect to the assignments of error or arguments raised * *

* and the manner in which the deficiency prejudicially affected the outcome of

the appeal.” Brown submitted no sworn statement.        In State v. Lechner, 72

Ohio St.3d 374, 1995-Ohio-25, 650 N.E.2d 449, the Supreme Court of Ohio

affirmed the denial of Lechner’s application that was solely on the basis of

failing to comply with App.R. 26(B)(2)(d). The Supreme Court of Ohio ruled

that the inclusion of the sworn statement is mandatory. State v. Tierney, 8th

Dist. No. 78847, 2002-Ohio-2607, reopening disallowed, 2002-Ohio-6618.

      {¶5} Accordingly, this court denies the application.
FRANK D. CELEBREZZE, PRESIDING JUDGE

KATHLEEN A. KEOUGH, J., and
EILEEN A. GALLAGHER, J., CONCUR
