[Cite as State v. Preston, 2022-Ohio-1057.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 109572
v. :
MICHAEL PRESTON, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: APPLICATION DENIED
RELEASED AND JOURNALIZED: March 30, 2022
Cuyahoga County Court of Common Pleas
Case No. CR-18-634913-A
Application for Reopening
Motion No. 552602
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Tasha L. Forchione, Assistant Prosecuting
Attorney, for appellee.
Michael Preston, pro se.
EILEEN T. GALLAGHER, J.:
Michael Preston has filed an application for reopening pursuant to
App.R. 26(B). Preston is attempting to reopen the appellate judgment rendered in
State v. Preston, 8th Dist. Cuyahoga No. 109572, 2021-Ohio-2278, that affirmed his
conviction and sentence for the offenses of reckless homicide, aggravated robbery,
felonious assault, and aggravated robbery imposed in State v. Preston, Cuyahoga
C.P. No. CR-18-634913-A. We decline to reopen Preston’s appeal because it is
untimely filed as required by App.R. 26(B)(1).
App.R. 26(B)(2)(b) requires that Preston establish “a showing of good
cause for untimely filing if the application is filed more than 90 days after
journalization of the appellate judgment” that is subject to reopening. The Supreme
Court of Ohio, with regard to the 90-day deadline provided by App.R. 26(B)(2)(b),
has established that
[w]e now reject [the applicant’s] claims that those excuses gave good
cause to miss the 90-day deadline in App.R. 26(B). * * * 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 90-day requirement in the
rule is “applicable to all appellants,” State v. Winstead (1996), 74 Ohio
St.3d 277, 278, 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, 8, and 10. 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).
Herein, Preston is attempting to reopen the appellate judgment that
was journalized on July 1, 2021. The application for reopening was not filed until
February 15, 2022, more than 90 days after journalization of the appellate judgment
in Preston, supra. Preston argues that delays associated with the prison mail room
and a lack of sufficient funds to pay for postage establish good cause for the untimely
filing of his application for reopening. A delay associated or caused by a prison mail
delivery system does not establish good cause for the untimely filing of an
application for reopening. State v. Black, 8th Dist. Cuyahoga No. 108001, 2020-
Ohio-3278; State v. Campbell, 8th Dist. Cuyahoga No. 105488, 2018-Ohio-3494;
State v. Harris, 8th Dist. Cuyahoga No. 104329, 2018-Ohio-839.
In addition, the lack of funds to mail an application does not establish
good cause for the untimely filing of an application for reopening. State v. Graves,
8th Dist. Cuyahoga No. 88845, 2007-Ohio-5430, reopening disallowed, 2010-
Ohio-4881 (indigence does not establish good cause for the untimely filing of an
application for reopening); see also State v. Brooks, 8th Dist. Cuyahoga No. 94978,
2012-Ohio-915 (lack of funds to mail application did not establish good cause for the
untimely filing); State v. Braddy, 8th Dist. Cuyahoga No. 83462, 2004-Ohio-3128,
reopening disallowed, 2005-Ohio-282 (lack of adequate funds to mail an
application for reopening does not establish good cause for untimely filing).
Finally, the Supreme Court of Ohio has established that good cause
cannot excuse the lack of timely filing for an indefinite period of time:
Good cause can excuse the lack of a filing only while it exists, not for an
indefinite period. See State v. Hill (1997), 78 Ohio St.3d 174, 1997-
Ohio-293, 677 N.E.2d 337; State v. Carter (1994), 70 Ohio St.3d 642,
1994-Ohio-55, 640 N.E.2d 811. We specifically reject [applicant’s]
claim that once an applicant has established good cause for filing more
than ninety days after journalization * * *, it does not matter when the
application is filed.
State v. Davis, 86 Ohio St.3d 212, 214, 714 N.E.2d 384 (1999).
Herein, the appellate judgment subject to reopening was journalized on
July 11, 2021. More than eight months have passed since we rendered our appellate
opinion. Thus, we find that even if good cause was established, the time for filing an
application for reopening has long passed. State v. Williams, 8th Dist. Cuyahoga
No. 106266, 2019-Ohio-4780; State v. Churn, 8th Dist. Cuyahoga No. 105782, 2019-
Ohio-4052; State v. Marshall, 8th Dist. Cuyahoga No. 87334, 2019-Ohio-1114; State
v. McCornell, 8th Dist. Cuyahoga No. 93274, 2015-Ohio-3764.
Accordingly, the application for reopening is denied.
_______________________________
EILEEN T. GALLAGHER, JUDGE
EILEEN A. GALLAGHER, P.J., and
MARY EILEEN KILBANE, J., CONCUR