[Cite as State v. Jarrells, 2014-Ohio-4564.]


                  Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA



                                JOURNAL ENTRY AND OPINION
                                         No. 99329




                                        STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                             ROBERT F. JARRELLS, JR.
                                                     DEFENDANT-APPELLANT




                                         JUDGMENT:
                                     APPLICATION DENIED


                              Cuyahoga County Court of Common Pleas
                                    Case No. CR-11-556216-A
                                    Application for Reopening
                                       Motion No. 476796


        RELEASE DATE: October 14, 2014
APPELLANT

Robert F. Jarrells, Jr. #633536
Richland Correctional Institution
1001 Olivesburg Road
Mansfield, Ohio 44901

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
By: Amy Venesile
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.:

       {¶1} Robert F. Jarrells, Jr. has filed an application for reopening pursuant to

App.R. 26(B). Jarrells is attempting to reopen the appellate judgment rendered in State

v. Jarrells, 8th Dist. Cuyahoga No. 99329, 2013-Ohio-3813, which affirmed his

convictions for driving while under the influence. For the reasons that follow, the

application to reopen is denied.

       {¶2} The appellate judgment was journalized on September 5, 2013.                  The

application for reopening was not filed until July 17, 2014. This falls outside the time

limits of App.R. 26(B)(1), which requires applications to be filed within 90 days after

journalization of the appellate judgment. The only exception that would permit us to

review an untimely application is if applicant establishes good cause for filing at a later

time. Id.

       {¶3} The Supreme Court of Ohio, with regard to the 90-day deadline provided by

App.R. 26(B)(2)(b), has firmly established that

       [c]onsistent 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., 455 U.S. 422, 437, 102 S.Ct 1148, 71 L.Ed.2d 265 (1982), and that is
       what Ohio has done by creating a 90-day deadline for the filing of
       applications to reopen. [The applicant] could have retained new attorneys
       after the court of appeals issued its decision in 1994, or he could have filed
       the application on his own. What he could not do was ignore the rule’s
       filing deadline. * * * 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, 653 N.E.2d 252 (1995); State v. Reddick, 72 Ohio St.3d 88, 647 N.E.2d

784 (1995).

       {¶4} Applicant has failed to establish “good cause” for the untimely filing of his

application for reopening.     He argues that good cause exists for his delayed filing

because he did not learn of the decision until he contacted the clerk’s office on April 10,

2014. He maintains he was not notified of the court’s decision until he received a copy

of it on May 15, 2014. The only evidentiary material that applicant offers in support of

when he received notice of the decision is his own affidavit. Applicant cites no case that

has found this constitutes good cause to allow consideration of an untimely application to

reopen, but there is precedent finding it is not good cause.

       {¶5} Applicant relies on two decisions from the Sixth District Court of Appeals;

however, both cases found good cause existed for reopening appeals that had been

dismissed because appointed counsel failed to file a brief. E.g., State v. Riley, 6th Dist.

Wood No. WD-03-076, 2006-Ohio-116, ¶ 9; State v. Hammon, 6th Dist. Erie No.

E-97-083, 1999 Ohio App. LEXIS 251 (Feb. 1, 1999).1 In this case, appellate counsel

did file a timely brief, which the court considered before rendering its decision.


       1Applicant   also relies on State v. Chu, 8th Dist. Cuyahoga Nos. 75583 and
       {¶6} To the extent that applicant contends that his counsel failed to communicate

the court’s decision to him and that this should be deemed good cause for consideration

of his untimely application, this court has rejected that argument.

       {¶7} It is well settled that “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.”       State v. Gray, 8th Dist. Cuyahoga No.            92646,

2012-Ohio-3565, ¶ 3, citing State v. Alt, 8th Dist. Cuyahoga No. 96289, 2012-Ohio-2054;

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

Dist. Cuyahoga No. 81529, 2004-Ohio-3861. An applicant’s alleged delayed notice of the

appellate decision does not constitute good cause for an untimely application. Alt, citing

State v. Mitchell, 8th Dist. Cuyahoga No. 88977, 2007-Ohio-6190, reopening disallowed,

2009-Ohio -1874 (“The failure of appellate counsel to notify a defendant-appellant of

the judgment of the court of appeals is not good cause for the untimely filing of an

application for reopening.”); see also State v. Henderson, 8th Dist. Cuyahoga No. 95655,

2013-Ohio-2524, ¶ 2.

       {¶8} It is proper to deny applications for reopening solely because they are

untimely filed and without good cause for the delay.         Gumm, 103 Ohio St.3d 162,



75689, 2002-Ohio-4422. However, it does not address the issue of what constitutes
good cause pursuant to App.R. 26(B). Id. at ¶ 31. Chu predates the precedent
established in 2004 by the Ohio Supreme Court in Gumm and LaMar that the
90-day deadline applies to all applicants and bars consideration of an untimely
application unless good cause is established.
2004-Ohio-4755, 814 N.E.2d 861; LaMar, 102 Ohio St.3d 467, 2004-Ohio-3976, 812

N.E.2d 970. Applicant’s failure to demonstrate good cause is a sufficient basis for

denying his application for reopening. See, e.g., State v. Almashni, 8th Dist. Cuyahoga

No. 92237, 2010-Ohio-898, reopening disallowed, 2012-Ohio-349. Because the lack of

good cause precludes our consideration of the untimely application, the substantive merits

of the application cannot be addressed. State ex rel. Wood v. McClelland, Slip Opinion

2014-Ohio-3969, ¶ 13.

      {¶9} Applicant has not established good cause for filing an untimely application

for reopening.

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



MARY EILEEN KILBANE, JUDGE

SEAN C. GALLAGHER, P.J., and
EILEEN T. GALLAGHER, J., CONCUR
