[Cite as State v. King, 2013-Ohio-2088.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
___________________________________
JOURNAL ENTRY AND OPINION
No. 97904
___________________________________
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DAEMON KING
DEFENDANT-APPELLANT
JUDGMENT:
APPLICATION DENIED
Cuyahoga County Court of Common Pleas
Case No. CR-549881
Application for Reopening
Motion No. 464339
RELEASE DATE: May 22, 2013
APPELLANT
Daemon King, pro se
Inmate No. 621-822
Belmont Correctional Institution
P.O. Box 540
St. Clairsville, Ohio 43950
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
Diane Russell
Daniel T. Van
Assistant County Prosecutors
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.:
{¶1} Applicant, Daemon King, pled guilty and was sentenced on convictions of
carrying a concealed weapon, trafficking in cocaine, and a firearm specification.
Applicant, through counsel, pursued an appeal. We affirmed the trial court’s judgment
in State v. King, 8th Dist. No. 97904, 2012-Ohio-4161. Applicant now seeks to reopen
the appeal pursuant to App.R. 26(B).
{¶2} The appellate judgment was journalized on September 13, 2012. The
application for reopening was not filed until April 23, 2013. 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
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.
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 (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.
(Emphasis added.) 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, 1995-Ohio-328, 653 N.E.2d 252; 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 the untimely filing
because he was relying on his retained counsel to pursue an appeal to the Ohio Supreme
Court and “raise everything that should have been raised on appeal.” Applicant asserts
that he did not do any research until after the Ohio Supreme Court declined to accept his
appeal. It is well settled that neither of these reasons offered by applicant qualify as
good cause for filing an application pursuant to App.R. 26(B) outside the 90-day time
period.
{¶5} An appellate court retains jurisdiction to consider an application to reopen
even though the applicant has an appeal pending in the Supreme Court. State v. Davis,
119 Ohio St.3d 422, 2008-Ohio-4608, 894 N.E.2d 1221, ¶ 21, 22 (Rules of Practice of the
Supreme Court allow appellate courts to consider App.R. 26(B) applications even after an
appeal to the Supreme Court is perfected.) Therefore, the fact that the applicant pursued
an appeal to the Ohio Supreme Court does not establish grounds for filing an untimely
application in this court pursuant to App.R. 26(B).
{¶6} Applicant’s remaining excuses are also unavailing. Ignorance of the law or
lack of effort or imagination do not automatically establish good cause for failure to seek
timely relief. State v. Twyford, 106 Ohio St.3d 176, 2005-Ohio-4380, 833 N.E.2d 289, ¶
9, citing, State v. Reddick, 72 Ohio St.3d 88, 91, 647 N.E.2d 784 (1995). Applicant
“cannot rely on his own alleged lack of legal training to excuse his failure to comply with
the deadline.” Id. Finally, reliance upon appellate counsel does not establish good
cause for the untimely filing of an application for reopening. State v. Alt, 8th Dist. No.
96289, 2012-Ohio-2054; see also State v. Hudson, 8th Dist. No. 91803, 2010-Ohio-2879,
at *2.
{¶7} Applicant has not established good cause for filing an untimely application
for reopening and it is therefore denied.
MARY EILEEN KILBANE, JUDGE
KENNETH A. ROCCO, P.J., and
EILEEN A. GALLAGHER, J., CONCUR