[Cite as State v. Gray,
2012-Ohio-3565.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 92646
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
RICARDO GRAY
DEFENDANT-APPELLANT
JUDGMENT:
APPLICATION DENIED
Cuyahoga County Court of Common Pleas
Case No. CR-369837
Application for Reopening
Motion No. 454323
RELEASE DATE: August 3, 2012
-i-
FOR APPELLANT, PRO SE
Ricardo Gray
Inmate No. 368-431
Richland Correctional Institution
P.O. Box 8107
Mansfield, Ohio 44901
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
Kristen L. Sobieski
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, A.J.:
{¶1} Ricardo Gray has filed an application for reopening pursuant to App.R. 26(B).
Gray seeks to reopen the appellate judgment rendered in State v. Gray, 8th Dist. No.
92646, 2010-Ohio-11, which affirmed his conviction for murder and felonious assault. We
decline to grant the application for reopening.
{¶2} App.R. 26(B)(2)(b) requires that Gray 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] 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 — 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-248,
647 N.E.2d 784.
{¶3} Gray is attempting to open the appellate judgment journalized on January 7,
2010. The application for reopening was not filed until April 18, 2012, more than 90 days
after journalization of the appellate judgment in Gray. Gray has failed in his effort to
establish “good cause,” with regard to the untimely filing of his application for reopening.
Defendant’s pursuit of other remedies, including an appeal to the Supreme Court of Ohio,
is an election of remedies, and thus does not provide good cause for a late filing of his
application to reopen his judgment. State v. Hornack, 8th Dist. No. 81021,
2005-Ohio-5843. Likewise, neither misplaced reliance on counsel nor lack of
communication between counsel and appellant provides good cause for a late filing of
his application for reopening. See State v. Alt, 8th Dist. No. 96289,
2012-Ohio-2054;
State v. Austin, 8th Dist. No. 87169,
2012-Ohio-1338; State v. Alexander, 8th Dist No.
81529,
2004-Ohio-3861.
{¶4} Accordingly, the application for reopening is denied.
PATRICIA ANN BLACKMON, ADMINISTRATIVE JUDGE
COLLEEN CONWAY COONEY, J., and
KATHLEEN ANN KEOUGH, J., CONCUR
