[Cite as State v. Thompson,
2021-Ohio-2926.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 109253
v. :
WIMBERLY THOMPSON, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: APPLICATION DENIED
RELEASED AND JOURNALIZED: August 23, 2021
Cuyahoga County Court of Common Pleas
Case No. CR-18-634365-A
Application for Reopening
Motion No. 547552
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Tasha L. Forchione, Assistant Prosecuting
Attorney, for appellant.
Wimberly Thompson, pro se.
LISA B. FORBES, J.:
Wimberly Thompson has filed an application for reopening pursuant
to App.R. 26(B). Thompson is attempting to reopen the appellate judgment
rendered in State v. Thompson, 8th Dist. Cuyahoga No. 109253, 2021-Ohio-376,
affirming his conviction and sentence for the offenses of felonious assault,
aggravated vehicular assault, violating a protection order, and operating a vehicle
while under the influence. We decline to reopen Thompson’s appeal.
App.R. 26(B)(2)(b) requires that Thompson 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, regarding the 90-day deadline provided by App.R. 26(B)(2)(b), has
established that:
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.
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).
Thompson is attempting to reopen the appellate judgment that was
journalized on February 11, 2021. The application for reopening was not filed until
June 28, 2021, more than 90 days after journalization of the appellate judgment in
Thompson, supra. Thompson argues that “this request to grant this delayed
reopening [is] due to the unprecedented and extraordinary circumstance(s)
surrounding the Covid-19 global pandemic.” Thompson, however, has failed to
establish how the Covid-19 pandemic prevented the timely filing of his application
for reopening, and thus “offers no sound reason why he — unlike so many other Ohio
criminal defendants — could not comply with that fundamental aspect of the rule.”
Gumm at ¶ 7. See also State v. McCrimon, 8th Dist. Cuyahoga No. 87617, 2017-
Ohio-5742; State v. Hammond, 8th Dist. Cuyahoga No. 100656,
2016-Ohio-8300;
State v. Battiste, 8th Dist. Cuyahoga No. 102299,
2016-Ohio-7232.
In addition, Thompson’s application for reopening exceeds the ten-
page limitation established by App.R. 26(B)(4). This procedural defect provides
sufficient grounds for dismissing the application for reopening. State v. Murawski,
8th Dist. Cuyahoga No. 70854, 2002-Ohio-3631; State v. Caldwell, 8th Dist.
Cuyahoga No. 44360,
2002-Ohio-2751; State v. Graham, 8th Dist. Cuyahoga No.
33350,
1975 Ohio App. LEXIS 6710 (June 12, 1975), reopening disallowed (July 21,
1994), motion No. 252743; State v. Schmidt, 8th Dist. Cuyahoga No. 57738,
1991
Ohio App. LEXIS 5787 (Dec. 5, 1991), reopening disallowed (Aug. 10, 1994), motion
No. 142174; and State v. Peeples, 8th Dist. Cuyahoga No. 54708,
1988 Ohio App.
LEXIS 5294 (Dec. 22, 1988), reopening disallowed (Aug. 24, 1994), motion No.
254080, aff’d,
71 Ohio St.3d 349,
643 N.E.2d 1112 (1994).
Finally, Thompson’s application for reopening fails to contain a
sworn statement that sets forth the basis of the claim alleging that appellate
counsel’s representation was deficient and the manner in which the deficiency
prejudiced the outcome of the appeal. App.R. 26(B)(2)(d). The sworn statement is
mandatory, and the failure to comply with this requirement warrants denial of an
application to reopen. State v. Lechner, 72 Ohio St.3d 374,
650 N.E.2d 449 (1995).
See also State v. Franklin,
72 Ohio St.3d 372,
650 N.E.2d 447 (1995) (an affidavit
swearing to the truth of the allegations in the application falls short of the
requirements set forth in App.R. 26(B)(2)(d); application denied); State v. Bates,
8th Dist. Cuyahoga Nos. 97631, 97632, 97633, and 97634,
2015-Ohio-4176
(applying Lechner and recognizing that the sworn statement is mandatory); State v.
Brown, 8th Dist. Cuyahoga No. 77572,
2012-Ohio-5703 (where no sworn statement
was submitted, denial of the application for reopening solely on the basis of failing
to comply with App.R. 26(B)(2)(d) was affirmed because inclusion of the statement
was mandatory); and State v. Davis, 7th Dist. Mahoning No. 05 MA 3, 2007-Ohio-
7213 (failure to submit a sworn statement pursuant to App.R. 26(B)(2)(d) is
sufficient to deny an application to reopen).
Accordingly, we deny Thompson’s application for reopening.
LISA B. FORBES, JUDGE
LARRY A. JONES, SR., P.J., and
MARY EILEEN KILBANE, J., CONCUR
