[Cite as State v. Moore, 2014-Ohio-3223.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 57223
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
JERRY MOORE
DEFENDANT-APPELLANT
JUDGMENT:
APPLICATION DENIED
Cuyahoga County Court of Common Pleas
Case No. CR-227207
Application for Reopening
Motion No. 475010
RELEASE DATE: July 18, 2014
FOR APPELLANT
Jerry Moore, pro se
Inmate No. 207-625, RI.C.I.
P.O. Box 8107
Mansfield, Ohio 44901
ATTORNEY FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.:
{¶1} Jerry Moore has filed an application for reopening pursuant to App.R.
26(B). Moore is attempting to reopen the appellate judgment rendered in State v. Moore,
8th Dist. Cuyahoga No. 57223, 1990 Ohio App. LEXIS 3305 (Aug. 9, 1990), which
affirmed his conviction for murder. For the reasons that follow, the application is
denied.
{¶2} The appellate judgment was journalized in 1990. The application for
reopening was not filed until May 19, 2014. This falls well 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
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 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, 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. LaMar, 102 Ohio St.3d 467, 2004-Ohio-3976, 812 N.E.2d 970, ¶ 7-9. “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.” State v. Gumm, 103 Ohio St.3d 162, 2004-Ohio-4755, 814 N.E.2d 861, ¶
7.
{¶4} Applicant argues that good cause exists for this delayed filing because he
was represented by the same attorney at trial and on appeal who could not be expected to
argue counsel’s own ineffectiveness. The Ohio Supreme Court has addressed this
argument and established that “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. Moore could have retained new attorneys after his
appeal was decided in 1990, or he could have filed an application for reopening on his
own. Instead he has waited over 20 years to apply for the reopening of his appeal.
There has been ample opportunity for this applicant to file an application for reopening
before now, and he has failed to establish good cause for the delayed filing. Gumm at ¶
3; see also State v. Conlon, 8th Dist. Cuyahoga No. 80411, 2014-Ohio-107.
{¶5} Accordingly, the application for reopening is denied.
MARY EILEEN KILBANE, PRESIDING JUDGE
PATRICIA A. BLACKMON, J., and
MELODY J. STEWART, J., CONCUR