[Cite as State v. Henderson, 2013-Ohio-2524.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 95655



                                      STATE OF OHIO
                                                         PLAINTIFF-APPELLEE

                                                   vs.

                                PAUL S. HENDERSON
                                                         DEFENDANT-APPELLANT




                                       JUDGMENT:
                                   APPLICATION DENIED


                            Cuyahoga County Court of Common Pleas
                                     Case No. CR-530899
                                  Application for Reopening
                                     Motion No. 464772


        RELEASE DATE:              June 19, 2013
FOR APPELLANT

Paul S. Henderson, pro se
Inmate No. 573-468
Marion Correctional Institution
P.O. Box 57
Marion, Ohio 43302


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
By: Diane Smilanick
Assistant County Prosecutor
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., J.:

       {¶1} On May 7, 2013, the applicant, Paul Henderson, 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. Henderson, 8th Dist. No. 95655, 2012-Ohio-1040, in which

this court affirmed Henderson’s convictions for drug trafficking, drug possession, and

possession of criminal tools. Henderson claims that he was deprived of the effective

assistance of appellate counsel.    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 May 2013

application was filed approximately 14 months after this court’s decision. Thus, it is

untimely on its face. In an effort to establish good cause, Henderson argues that he did

not receive notice of this court’s decision until August 2012, and then had difficulty in

obtaining the record from the public defender’s office, and then needed months of

research to formulate his argument. However, lack of a transcript does not state good

cause for an untimely filing. State v. Lawson, 8th Dist. No. 84402, 2005-Ohio-880,

reopening disallowed, 2006-Ohio-3839.

       {¶3} Moreover, 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 lawyers continued to represent them, and their appellate

lawyers 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. 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).

      {¶4} Additionally, Henderson represented himself on appeal. Throughout these

proceedings, Henderson repeatedly submitted filings, such as motions for default

judgment and summary judgment, to obtain his immediate release from prison. The final

brief was his own work, and in his supporting affidavit he states: “I was ineffective

because I failed to raise a winning issue.” Because Henderson represented himself in the

appeal, he is now precluded from arguing ineffective assistance of appellate counsel.

State v. Boone, 114 Ohio App.3d 275, 683 N.E.2d 67 (7th Dist.1996); and State v.

Jackson, 8th Dist. No. 80118, 2002-Ohio-5461. As the United States Supreme Court

noted in Faretta v. California, 422 U.S. 806, 834, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975),

fn. 46, “a defendant who elects to represent himself cannot thereafter complain that the

quality of his own defense amounted to a denial of ‘effective assistance of counsel.’”

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

MARY J. BOYLE, P.J., and
LARRY A. JONES, SR., J., CONCUR
