Court of Appeals of Ohio, Eighth District, Cuyahoga
DENIED Cuyahoga County Court of Common Pleas Case Nos.
CR-13-572009-B, CR-13-573056-A, and CR-13-576253-A
Application for Reopening Motion No. 503847
APPELLANT Maurice Brown, pro se.
ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga
County Prosecutor By: Frank Romeo Zeleznikar Assistant County
JOURNAL ENTRY AND OPINION
A JONES, SR, JUDGE.
On January 23, 2017, the applicant, Maurice Brown, applied
pursuant to App.R. 26(B), to reopen this court's judgment
in State v. Brown, 8th Dist. Cuyahoga No. 101367,
2015-Ohio-598, in which this court affirmed his many
convictions. Brown argues his appellate counsel should
have argued (1) that his guilty plea was involuntary because
his trial counsel failed to advise him of the essential
elements of the charges, (2) that his guilty plea was
involuntary because the judge failed to determine that he
understood the nature of the charges against him and the
essential elements of those charges, and (3) that his guilty
plea was involuntary when the trial judge failed to inform
him that he could receive consecutive sentences. On January
27, 2017, the state of Ohio filed its brief in opposition.
For the following reasons, this court denies the application
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
January 2017 application was filed approximately 23 months
after this court's decision. Thus, it is untimely on its
In an effort to show good cause, Brown states in his
supporting affidavit that he suffers from serious mental
illness that causes him to become delusional and incapable of
reading and writing in any understandable capacity. During
the court hearings, Brown stated that he was taking Depokote
for various mental conditions, including bipolar disorder and
depression. Both the prosecutor and defense counsel admitted
that Brown had mental health issues. Brown further stated in
his affidavit that the law library at the Southern
Correctional Facility was inadequate because it did not have
copies of the rules of court and that the four
"official" legal clerks did not know how to file an
App.R. 26(B) application to reopen. Furthermore, the
"jailhouse lawyers" were harassed by the law
librarian and, thus, Brown could not find a "jailhouse
lawyer" to help him until after the time for filing had
However, these explanations are insufficient. This court has
held that a self-serving affidavit pleading medical
incapacity does not show good cause for untimely filing. It
would be all too easy for a petitioner to claim a medical
excuse to show good cause for an untimely application. Thus,
a claim of medical incapacity without supporting records to
substantiate the medical condition, e.g., prison medical
records, is not sufficient to show good cause. State v.
Gilbert, 8th Dist. Cuyahoga No. 90856, 2009-Ohio-607,
reopening disallowed, 2010-Ohio-4103; and State
v. Davis, 8th Dist. Cuyahoga Nos. 97689, 97691, and
97692, 2012-Ohio-3951, reopening disallowed,
Additionally, the courts have repeatedly rejected the claim
that limited access to legal materials states good cause for
untimely filing. Prison riots, lockdowns, and other library
limitations have been rejected as constituting good cause.
State v. Tucker, 73 Ohio St.3d 152, 1995-Ohio-2, 652
N.E.2d 720; State v. Kaszas, 8th Dist. Cuyahoga Nos.
72546 and 72547, 1998 WL 598530 (Sept. 10, 1998),
reopening disallowed, 2000 WL 1195676 (Aug. 14,
2000); State v. Hickman, 8th Dist. Cuyahoga No.
72341, 1998 WL 213166 (Apr. 30, 1998), reopening
disallowed, 2000 WL 1901272 (Dec. 13, 2000); and
State v. Turner, 8th Dist. Cuyahoga No. 55960, 1989
WL 139488 (Nov. 16, 1989), reopening disallowed,
2001 WL 1001014 (Aug. 20, 2001).
Moreover, the court notes that Brown's proposed
assignments of error are not persuasive. In State v.
Johnson, 40 Ohio St.3d 130, 532 N.E.2d 1295 (1988),
syllabus, the Supreme Court of Ohio ruled that the failure to
inform a defendant who pleads guilty that the court may order
him to serve consecutive sentences does not render the plea
involuntary. Similarly, it is not necessary for the trial
court to recite the elements of each crime charged. State
v. Underwood, 4th Dist. Meigs No. 98CA11, 1999 WL 301637
(May 7, 1999). Nor does the record indicate that Brown's
counsel did not review each of the charges with him.
Appellate review is strictly limited to the record. The
Warder, Bushnell & Glessner Co. v. Jacobs, 58 Ohio
St. 77, 50 N.E. 97 (1898); Carran v. Soline Co., 7
Ohio Law Abs. 5 (1928), and Republic Steel Corp. v.
Sontag, 21 Ohio Law Abs. 358 (1935). "Clearly,
declining to raise claims without record support cannot
constitute ineffective assistance of appellate counsel."
State v. Burke, 97 Ohio St.3d 55, 2002-Ohio-5310,
776 N.E.2d 79, ¶ 10. Claims of ineffective assistance of
trial counsel that are dependent on matters outside the
record are better suited for a postconviction relief
Accordingly, the court denies the application to reopen.
D. CELEBREZZE, JR., P.J., and MARY J. BOYLE, J., CONCUR.