[Cite as State v. Wilcox, 2013-Ohio-2895.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
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JOURNAL ENTRY AND OPINION
No. 96079
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STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
ISSAC WILCOX
DEFENDANT-APPELLANT
JUDGMENT:
APPLICATION DENIED
Cuyahoga County Court of Common Pleas
Case No. CR-540046
Application for Reopening
Motion No. 464832
RELEASE DATE: July 1, 2013
FOR APPELLANT
Issac Wilcox, pro se
Inmate No. 593-138
Mansfield Correctional Institution
P.O. Box 788
Mansfield, OH 44901
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Kristen L. Sobieski
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, OH 44113
SEAN C. GALLAGHER, J.:
{¶1} On May 9, 2013, the applicant, Issac Wilcox, applied pursuant to App.R.
26(B) and State v. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204 (1992), to reopen this
court’s judgment in State v. Wilcox, 8th Dist. No. 96079, 2011-Ohio-5388, in which this
court affirmed Wilcox’s convictions for kidnapping with a three-year firearm
specification, domestic violence, having a weapon under disability, and four counts of
aggravating menacing. Wilcox argues that his appellate counsel was ineffective for
failing to raise various issues, including hearsay evidence and prosecutorial misconduct.
On June 10, 2013, 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 May 2013
application was filed approximately 19 months after this court’s decision. Thus, it is
untimely on its face. In an effort to establish good cause, Wilcox argues that after the
appeal, his family retained an attorney to file, inter alia, the App.R. 26(B) application, but
the attorney never filed the application in the ensuing year. The client-counsel
relationship terminated no later than January 2013. Thus, Wilcox argues that his
misplaced reliance on the attorney provides good cause for the untimely filing.
{¶3} However, reliance on counsel does not state good cause. In State v. White,
8th Dist. No. 57944, 1991 Ohio App. LEXIS 357 (Jan. 31, 1991), reopening disallowed
(Oct. 19, 1994), motion No. 249174; and State v. Allen, 8th Dist. No. 65806, 1994 Ohio
App. LEXIS 4956 (Nov. 3, 1994), reopening disallowed (July 8, 1996), motion No.
267054, this court rejected reliance on counsel as showing good cause. In State v. Rios,
75 Ohio App.3d 288, 599 N.E.2d 374 (8th Dist.1991), reopening disallowed (Sept. 18,
1995), motion No. 266129, Rios maintained that the untimely filing of his application for
reopening was primarily caused by the ineffective assistance of appellate counsel; again,
this court rejected that excuse.
{¶4} 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 courts 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. 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, lack
of imagination, and ignorance of the law do not establish good cause for failure to seek
timely relief under App.R. 26(B). Thus, Wilcox’s misplaced reliance on his new
counsel does not state good cause.
{¶5} Accordingly, this court denies the application to reopen.
SEAN C. GALLAGHER, JUDGE
MELODY J. STEWART, A.J., and
MARY J. BOYLE, J., CONCUR