Court of Appeals of Ohio, Eighth District, Cuyahoga
Cuyahoga County Court of Common Pleas Case No. CR-17-617365-B
Application for Reopening Motion No. 532739
Michael C. O'Malley, Cuyahoga County Prosecuting
Attorney, and Frank Romeo Zeleznikar, Assistant Prosecuting
Attorney, for appellee.
Copeland, pro se.
JOURNAL ENTRY AND OPINION
BOYLE, PRESIDING JUDGE
1} James Copeland has filed an application for
reopening pursuant to App.R. 26(B). Copeland is attempting to
reopen the appellate judgment rendered in State v.
Copeland, 8th Dist. Cuyahoga No. 106988, 2019-Ohio-1370,
which affirmed his conviction and the sentence of
incarceration imposed in State v. Copeland,
Cuyahoga C.P. No. CR-17-617365-B, for the offenses of
felonious assault (R.C. 2903.11(A)(1)), discharge of a
firearm on or near prohibited premises (R.C. 2923.162(A)(3)),
and having weapons while under disability (R.C.
2923.13(A)(3)). We decline to reopen Copeland's appeal.
2} App.R. 26(B)(2)(b) requires that Copeland
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
[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 C unlike so many other Ohio
criminal defendants C 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, 653 N.E.2d
252 (1995); State v. Reddick, 72 Ohio St.3d 88, 647
N.E.2d 784 (1995).
3} Herein, Copeland is attempting to reopen the
appellate judgment that was journalized on April 11, 2019.
The application for reopening was not filed until October 11,
2019, more than 90 days after journalization of the appellate
judgment in Copeland. Thus, the application for
reopening is untimely on its face.
4} In an attempt to argue good cause for the
untimely filing of the application for reopening, Copeland
argues detrimental reliance upon retained counsel.
Specifically, Copeland argues that his retained counsel
failed to timely file an App.R. 26(B) application for
5} Reliance upon appellate counsel does not
establish good cause for the untimely filing of an
application for reopening. State v. White, 8th Dist.
Cuyahoga No. 101576, 2017-Ohio-7169; State v. Huber,
8th Dist. Cuyahoga No. 93923, 2011-Ohio-3240; State v.
Koreisl, 8th Dist. Cuyahoga No. 90950, 2011-Ohio-6438;
State v. Hudson, 8th Dist. Cuyahoga No. 91803,
2010-Ohio-2879. See also State v. Nicholson, 8th
Dist. Cuyahoga No. 82825, 2004-Ohio-2394, reopening
disallowed, 2006-Ohio-3020, (recognizing that
ineffective assistance of appellate counsel is not a
sufficient excuse to support an untimely filing for an
application to reopen). Additionally, "lack of knowledge
or ignorance of the time constraint, applicable to an
application for reopening per App.R. 26(B), does not provide
sufficient cause for untimely filing." Hudson
at ¶ 7, citing State v. Klein, 8th Dist.
Cuyahoga No. 58389, 1991 Ohio App. LEXIS 1346 (Mar. 28,
1991), reopening disallowed (Mar. 15, 1994), motion
No. 249260, affd, 69 Ohio St.3d 1481, 634 N.E.2d
6} Moreover, this court has denied applications for
reopening even if they are filed only a day after the
deadline. See, e.g., State v. Kimbrough, 8th Dist.
Cuyahoga No. 97568, 2012-Ohio-4931; ...