2012 Ohio 2190 - State v. Cole

[Cite as State v. Cole,

2012-Ohio-2190

.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 94911



                                       STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                           TYRONE COLE
                                                     DEFENDANT-APPELLANT




                                       JUDGMENT:
                                   APPLICATION DENIED


                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-526704
                                   Application for Reopening
                                      Motion No. 453710

               RELEASE DATE: May 15, 2012
APPELLANT

Tyrone Cole, pro se
582-138
Lebanon Correctional Institution
P.O. Box 56
Lebanon, Ohio 45036

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
Kevin R. Filiatraut
Mark J. Mahoney
Assistant County Prosecutors
9th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, P.J.:

         {¶1} Tyrone Cole has filed an application for reopening pursuant to App.R.

26(B).     Cole seeks to reopen the appellate judgment rendered in State v. Cole, 8th Dist.

No. 94911,

2011-Ohio-2146

, which affirmed his plea of guilty and sentence with regard

to the charged offenses of attempted aggravated murder, aggravated robbery, felonious

assault, kidnapping, and conspiracy. We decline to reopen his appeal.

{¶2} App.R. 26(B)(2)(b) requires that Cole establish “a showing of good cause

for untimely filing if the application is filed more than 90 days after journalization of the

appellate judgment,” which 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 firmly established that:

We now reject [the applicant’s] claim that those excuses gave him good
cause to miss the 90-day deadline in App.R. 26(B). The rule was amended
to include the 90-day deadline more than seven months before [the
applicant’s] appeal of right was decided by the court of appeals in February
1994, so the rule was firmly established then, just as it is today.
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 applicant] could have retained new
         attorneys after the court of appeals issued its decision in 1994, or he could
         have filed the application on his own. What he could not do was ignore the
         rule’s filing deadline. … 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, at ¶ 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

1995-Ohio-328

653 N.E.2d 252

; State v.
Reddick,

72 Ohio St.3d 88

1995-Ohio-249

647 N.E.2d 784

.

      {¶3} Cole is attempting to reopen the appellate judgment journalized on May 5,

2011. The application for reopening was not filed until March 28, 2012, more than 90

days after journalization of the appellate judgment in Cole. Cole has failed to establish

“good cause” for the untimely filing of his application for reopening. Restricted access

to a law library and the inability to conduct legal research do not establish “good cause”

for the untimely filing of his application for reopening. State v. Quiles, 8th Dist. No.

84293,

2006-Ohio-7324

. See also State v. Klein, 8th Dist. No. 58389,

1991 WL 41746


(Mar. 28, 1991), reopening disallowed (Mar. 15, 1994), Motion No. 49260, aff’d,

69 Ohio St.3d 1481

634 N.E.2d 1027

 (1994); State v. Trammell, 8th Dist. No. 67834,

1995 WL 415171

 (July 13, 1995), reopening disallowed (Apr. 22, 1996), Motion No. 70493; State

v. Travis 8th Dist. No. 56825,

1990 WL 40573

 (Apr. 5, 1990), reopening disallowed

(Nov. 2, 1994), Motion No. 51073, aff’d,

72 Ohio St.3d 317

649 N.E.2d 1226

 (1995).

See also State v. Gaston, 8th Dist. No. 79626,

2007-Ohio-155

, reopening disallowed (Jan.

17, 2007), Motion No. 391555; State v. Torres, 8th Dist. No. 86530,

2007-Ohio-9

.

      {¶4} Accordingly, the application for reopening is denied.
MARY EILEEN KILBANE, PRESIDING JUDGE

COLLEEN CONWAY COONEY, J., and
KATHLEEN ANN KEOUGH, J., CONCUR