The opinion
[Cite as State v. Brown, 2012-Ohio-5703.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 77572
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
JERRY BROWN
DEFENDANT-APPELLANT
JUDGMENT:
APPLICATION DENIED
Cuyahoga County Common Pleas Court
Case No. CR-373957
Application for Reopening
Motion No. 460073
RELEASE DATE: November 30, 2012
ATTORNEY FOR APPELLANT
G. Michael Goins
10803 Lake Avenue
Suite 201
Cleveland, Ohio 44102
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Kristen L. Sobieski
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., P.J.:
{¶1} On November 9, 2012, the applicant, Jerry Brown, pursuant to
App.R. 26(B), applied to reopen this court’s judgment in State v. Brown, 8th
Dist. No. 77572, 2001 Ohio App. LEXIS 2082, in which this court affirmed
Brown’s convictions and sentences for ten counts of rape, but vacated the
finding that he was a violent sexual predator. 1 Brown asserts that his
appellate counsel should have argued (1) that the trial court erred in not
allowing defense counsel the opportunity to examine the victim’s mental state
and (2) that his trial counsel was ineffective for failing to raise the issue of the
1 This court ruled that the violent sexual predator specification was inapplicable to Brown
because the rapes occurred before the effective date of R.C. 2941.148 that established the
victim’s mental state. On November 14, 2012, 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 November 2012 application was filed approximately 11 years and six
months after this court announced its decision. Thus, it is untimely on its
face. Brown implicitly argues lack of funds as good cause for untimely filing.
The memorandum in support of the application states that Brown’s family
had just recently become able to retain legal counsel for this remedy.
However, the courts of Ohio have ruled that lack of funds and lack of counsel
do not provide good cause. State v. Brooks, 8th Dist. No. 94978,
2011-Ohio-1679, reopening disallowed, 2012-Ohio-915. 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 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 reaffirmed the principle that lack of effort,
specification.
imagination, and ignorance of the law do not establish good cause for failure
to seek timely relief under App.R. 26(B).
{¶3} Moreover, the lapse of 11 years is too long. In State v. Davis, 86
Ohio St.3d 212, 214, 1999-Ohio-160, 714 N.E.2d 384, the Supreme Court of
Ohio addressed a similar long lapse of time in filing the App.R. 26(B)
application and ruled: “Even if we were to find good cause of earlier failures
to file, any such good cause ‘has long since evaporated. 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, 1254.”
{¶4} App.R. 26(B)(2)(d) requires an applicant to include a “sworn
statement of the basis for the claim that appellate counsel’s representation
was deficient with respect to the assignments of error or arguments raised * *
* and the manner in which the deficiency prejudicially affected the outcome of
the appeal.” Brown submitted no sworn statement. In State v. Lechner, 72
Ohio St.3d 374, 1995-Ohio-25, 650 N.E.2d 449, the Supreme Court of Ohio
affirmed the denial of Lechner’s application that was solely on the basis of
failing to comply with App.R. 26(B)(2)(d). The Supreme Court of Ohio ruled
that the inclusion of the sworn statement is mandatory. State v. Tierney, 8th
Dist. No. 78847, 2002-Ohio-2607, reopening disallowed, 2002-Ohio-6618.
{¶5} Accordingly, this court denies the application.
FRANK D. CELEBREZZE, PRESIDING JUDGE
KATHLEEN A. KEOUGH, J., and
EILEEN A. GALLAGHER, J., CONCUR