2019 OHIO 3755 - State v. Jackson

[Cite as State v. Jackson,

2019-Ohio-3755

.]

                               COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA

STATE OF OHIO,                                      :

                 Plaintiff-Appellee,                :
                                                             No. 103957
                 v.                                 :

DEMETRIUS A. JACKSON,                              :

                 Defendant-Appellant.               :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: APPLICATION DENIED
                 RELEASED AND JOURNALIZED: September 18, 2019


                           Cuyahoga County Court of Common Pleas
                                 Case No. CR-15-598188-A
                                 Application for Reopening
                                     Motion No. 531240


                                              Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Anthony T. Miranda, Assistant Prosecuting
                 Attorney, for appellee.

                 Demetrius A. Jackson, pro se.


EILEEN A. GALLAGHER, P.J.:

                   On August 19, 2019, the applicant, Demetrius Jackson, pursuant to

App.R. 26(B), applied to reopen this court’s judgment in State v. Jackson, 8th Dist.

Cuyahoga No. 103957,

2018-Ohio-3492

, in which this court affirmed Jackson’s
convictions for kidnapping, gross sexual imposition and two counts of rape. Jackson

now argues that his appellate counsel was ineffective because (1) he did not argue

ineffective assistance of trial counsel for his failure to object to the use of DNA

evidence or not testing other DNA evidence, (2) he did not advise Jackson on the

possibility of filing a postconviction relief petition and (3) he did not advise Jackson

on the deadline for filing a postconviction relief petition. For the following reasons,

this court, sua sponte, denies the application to reopen.

               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 August

2019 application was filed approximately one year after this court’s decision. Thus,

it is untimely on its face. Jackson proffers no cause for his untimely filing. The

Supreme Court of Ohio in State v. LaMar,

102 Ohio St.3d 467

2004-Ohio-3976

812 N.E.2d 970

, and State v. Gumm,

103 Ohio St.3d 162

2004-Ohio-4755

814 N.E.2d 861

, held that the 90-day deadline for filing must be strictly enforced. Lack

of effort, lack of imagination and ignorance of the law do not provide good cause for

untimely filing under App.R. 26(B).

               Accordingly, this court denies the application to reopen as untimely.




EILEEN A. GALLAGHER, PRESIDING JUDGE

MARY J. BOYLE, J., and
SEAN C. GALLAGHER, J., CONCUR