The opinion
[Cite as State v. Brown, 2011-Ohio-3577.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95048
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
VERNON BROWN
DEFENDANT-APPELLANT
JUDGMENT:
APPLICATION DENIED
Cuyahoga County Common Pleas Court
Case No. CR-447563
Application for Reopening
Motion No. 445321
RELEASE DATE: July 19, 2011
2
FOR APPELLANT
Vernon Brown, pro se
Trumbull Correctional Institution
Inmate No. A-482-002
Post Office Box 901
Leavittsburg, Ohio 44430
ATTORNEY FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, J.:
{¶ 1} In State v. Brown, Cuyahoga County Court of Common Pleas Case No.
CR-447563, applicant, Vernon Brown, was found guilty by a jury and convicted of two
counts of murder with firearm specifications; robbery with a firearm specification;
carrying a concealed weapon; and having a weapon while under disability. This court
affirmed that judgment in State v. Brown, Cuyahoga App. No. 93007, 2010-Ohio-2460.
The Supreme Court of Ohio denied Brown’s motion for leave to appeal and dismissed the
appeal as not involving any substantial constitutional question. State v. Brown, 126
Ohio St.3d 1601, 2010-Ohio-4928, 935 N.E.2d 47.
{¶ 2} On April 19, 2010, the trial court denied Brown’s motion to waive or stay
imposition of court costs. Brown appealed, and this court affirmed. State v. Brown,
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Cuyahoga App. No. 95048, 2011-Ohio-1096. The Supreme Court of Ohio denied
Brown’s motion for leave to appeal and dismissed the appeal as not involving any
substantial constitutional question. State v. Brown, 128 Ohio St.3d 1559,
2011-Ohio-2905, 949 N.E.2d 45.
{¶ 3} Brown has filed with the clerk of this court an application for reopening of
this court’s judgment affirming the denial of his motion to waive or stay imposition of
court costs. He asserts that he was denied the effective assistance of appellate counsel
because his appellate counsel did not assign the trial court’s imposition of court costs as
error. We deny the application for reopening. As required by App.R. 26(B)(6), the
reasons for our denial follow.
{¶ 4} Initially, we note that App.R. 26(B)(1) provides, in part: “A defendant in
a criminal case may apply for reopening of the appeal from the judgment of conviction
and sentence, based on a claim of ineffective assistance of appellate counsel.”
(Emphasis added.) Brown appealed his conviction and sentence in Case No. 93007. In
Case No. 95048, which gives rise to this application for reopening, Brown appeals the
denial of his motion to waive or stay imposition of court costs. App.R. 26(B) reopening
“applies only to appeals from the judgment of conviction and sentence and not other
collateral matters arising in a criminal case * * * .” State v. Gaston, Cuyahoga App. No.
92242, 2009-Ohio-3080, reopening disallowed, 2009-Ohio-4715, ¶3. Reopening is not,
therefore, appropriate in this case.
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{¶ 5} Additionally, we note that App.R. 26(B)(1) provides, in part: “An
application for reopening shall be filed * * * within ninety days from journalization of the
appellate judgment unless the applicant shows good cause for filing at a later time.”
App.R. 26(B)(2)(b) requires that an application for reopening include “a showing of good
cause for untimely filing if the application is filed more than ninety days after
journalization of the appellate judgment.”
{¶ 6} This court's decision affirming the denial of his motion to waive or stay
imposition of court costs was journalized on March 10, 2011. The application was filed
on June 14, 2011. Brown contends that his application was timely and asserts that it was
filed 89 days after journalization. He does not, however, provide this court with any
argument or evidence that there is good cause for his application being filed more than 90
days after journalization. That is, the application was actually filed 96 days after
journalization of this court’s judgment in Case No. 95048.1
{¶ 7} The Supreme Court has upheld judgments denying applications for
reopening solely on the basis that the application was not timely filed, and the applicant
1
Days Month
21 March
30 April
31 May
14 June
96 TOTAL
5
failed to show “good cause for filing at a later time.” App.R. 26(B)(1). See, e.g., State
v. Gumm, 103 Ohio St.3d 162, 2004-Ohio-4755, 814 N.E.2d 861; State v. LaMar, 102
Ohio St.3d 467, 2004-Ohio-3976, 812 N.E.2d 970. Applicant’s failure to demonstrate
good cause is a sufficient basis for denying the application for reopening. See, also,
State v. Collier (June 11, 1987), Cuyahoga App. No. 51993, reopening disallowed
2005-Ohio-5797, Motion No. 370333; State v. Garcia (July 8, 1999), Cuyahoga App. No.
74427, reopening disallowed 2005-Ohio-5796, Motion No. 370916.
{¶ 8} As a consequence, applicant has not met the standard for reopening.
Accordingly, the application for reopening is denied.
____________________________________
MARY J. BOYLE, JUDGE
MELODY J. STEWART, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR