[Cite as State v. Burks,
2022-Ohio-4397.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 106639
v. :
DARYL BURKS, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: APPLICATION DENIED
RELEASED AND JOURNALIZED: December 5, 2022
Cuyahoga County Court of Common Pleas
Case No. CR-16-611300-A
Application for Reopening
Motion No. 557783
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Katherine E. Mullin, Assistant Prosecuting
Attorney, for appellee.
Daryl Burks, pro se.
FRANK DANIEL CELEBREZZE, III, J.:
Daryl Burks has filed an application for reopening pursuant to App.R.
26(B). Burks is attempting to reopen the appellate judgment rendered in State v.
Burks, 8th Dist. Cuyahoga No. 106639, 2018-Ohio-4777, which affirmed his
conviction and sentence for the offenses of extortion, intimidation of a crime victim,
and pandering obscenity. We decline to reopen Burks’s appeal.
App.R. 26(B)(2)(b) requires that Burks 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 established that
[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 — 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, ¶ 7-8. 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).
Herein, Burks is attempting to reopen the appellate judgment that was
journalized on November 29, 2018. The application for reopening was not filed until
August 31, 2022, more than 90 days after journalization of the appellate judgment
in Burks, supra.1 Burks has not presented any reasons to establish good cause for
the untimely filing of his application for reopening. State v. Black, 8th Dist.
Cuyahoga No. 108001, 2020-Ohio-3278; State v. Campbell, 8th Dist. Cuyahoga No.
105488,
2018-Ohio-3494; State v. Harris, 8th Dist. Cuyahoga No. 104329, 2018-
Ohio-839.
It must be noted that Burks, on October 28, 2022, attempted to
remedy the failure to establish good cause through a motion to amend the
application for reopening. The motion to amend was denied on October 28, 2022,
because there exists no provision for amending an original application for
reopening. State v. Snyder, 5th Dist. Licking No. 2008-CA-25, 2009-Ohio-2473.
In addition, amendment of an application for reopening may be considered a
successive application for reopening and there exists no right to file successive
applications for reopening. State v. Richardson,
74 Ohio St.3d 235,
658 N.E.2d
273 (1996); State v. Cheren,
73 Ohio St.3d 137,
652 N.E.2d 707 (1995).
Nevertheless, consideration of the arguments raised in support of
good cause, through the motion to amend, does not establish a valid basis for the
untimely filing of his App.R. 26(B) application for reopening. In State v. Lamar,
8th Dist. Cuyahoga No. 49551, 1985 Ohio App. LEXIS 7284 (Oct. 3, 1985),
reopening disallowed (Nov. 15, 1995), Motion No. 63398, this court held that lack
1 Burks filed a second App.R. 26(B) application for reopening that was identical to
the original application for reopening filed on August 31, 2022. The second application
for reopening is dismissed because it is a duplicate.
of communication with appellate counsel did not establish good cause. See also,
State v. Jarrells, 8th Dist. Cuyahoga No. 99329, 2014-Ohio-4564. Similarly, in
State v. White, 8th Dist. Cuyahoga No. 57944,
1991 Ohio App. LEXIS 357 (Jan. 31,
1991), reopening disallowed (Oct. 19, 1994), Motion No. 49174, and State v. Allen,
8th Dist. Cuyahoga No. 65806,
1994 Ohio App. LEXIS 4956 (Nov. 3, 1994),
reopening disallowed (July 8, 1996), Motion No. 67054, wherein this court
rejected reliance on counsel as showing good cause. In State v. Fortson, 8th Dist.
Cuyahoga No. 72229,
1998 Ohio App. LEXIS 6104 (Dec. 17, 1998), reopening
disallowed (Jan. 23, 2001), Motion No. 18195,
2001 Ohio App. LEXIS 245, this
court held that an attorney’s delay in notification of an appellate decision does not
establish good cause. See also State v. Congress, 8th Dist. Cuyahoga No. 102867,
2018-Ohio-4521; State v. Moss, 8th Dist. Cuyahoga Nos. 62318 and 62322,
1993
Ohio App. LEXIS 2491 (May 13, 1993), reopening disallowed (Jan. 16, 1997),
Motion No. 75838; State v. McClain, 8th Dist. Cuyahoga No. 67785,
1995 Ohio
App. LEXIS 3207 (Aug. 3, 1995), reopening disallowed (Apr. 15, 1997), Motion No.
76811; and State v. Russell, 8th Dist. Cuyahoga No. 69311,
1996 Ohio App. LEXIS
1879 (May 9, 1996), reopening disallowed (June 16, 1997), Motion No. 82351,
1997
Ohio App. LEXIS 2663.
Lack of knowledge or ignorance of the law does not provide sufficient
cause for the untimely filing of an application for reopening. State v. Klein, 8th
Dist. Cuyahoga No. 58389, 1991 Ohio App. LEXIS 1346 (Apr. 8, 1991), reopening
disallowed (Mar. 15, 1994), Motion No. 49260, affirmed,
69 Ohio St.3d 1481,
634
N.E.2d 1027 (1994); State v. Trammell, 8th Dist. Cuyahoga No. 67834,
1995 Ohio
App. LEXIS 2962 (July 24, 1995), reopening disallowed (Apr. 22, 1996), Motion
No. 70493; State v. Cummings, 8th Dist. Cuyahoga No. 69966,
1996 Ohio App.
LEXIS 4565 (Oct. 17, 1996), reopening disallowed (Mar. 26, 1998), Motion No.
92134; and State v. Young, 8th Dist. Cuyahoga Nos. 66768 and 66769,
1994 Ohio
App. LEXIS 4634 (Oct. 13, 1994), reopening disallowed (Dec. 5, 1995), Motion No.
66164.
This court has also repeatedly rejected the claim that limited access to
legal materials states good cause for untimely filing. Further, prison riots,
lockdowns, and other library limitations have been rejected as constituting good
cause. State v. Kaszas, 8th Dist. Cuyahoga Nos. 72547 and 72547, 1998 Ohio App.
LEXIS 4227 (Sept. 21, 1988), reopening disallowed (Aug. 14, 2000), Motion
No. 16752,
2000 Ohio App. LEXIS 3755; State v. Hickman, 8th Dist. Cuyahoga
No. 72341,
1998 Ohio App. LEXIS 1893 (Apr. 30, 1998), reopening disallowed
(Dec. 13, 2000), Motion No. 20830; State v. Turner, 8th Dist. Cuyahoga No. 55960
(Nov. 16, 1989), reopening disallowed (Aug. 20, 2001), Motion No. 23221; and
State v. Stearns, 8th Dist. Cuyahoga No. 76513,
2000 Ohio App. LEXIS 3161
(July 24, 2000), reopening disallowed (Feb. 14, 2002), Motion No. 27761,
2002
Ohio App. LEXIS 770.
Finally, the Supreme Court of Ohio has established that good cause
cannot excuse the lack of timely filing for an indefinite period of time:
Good cause can excuse the lack of a filing only while it exists, not for an
indefinite period. See State v. Hill (1997), 78 Ohio St.3d 174, 1997-
Ohio-293, 677 N.E.2d 337; State v. Carter (1994),
70 Ohio St.3d 642,
1994-Ohio-55,
640 N.E.2d 811. We specifically reject [applicant’s]
claim that once an applicant has established good cause for filing more
than ninety days after journalization …, it does not matter when the
application is filed.
State v. Davis, 86 Ohio St.3d 212, 214,
714 N.E.2d 384 (1999).
More than three years and eight months have passed since we rendered
our appellate opinion that affirmed Burks’s conviction and sentence. Thus, we find
that even if good cause was established, the time for filing an application for
reopening has long passed. State v. Williams, 8th Dist. Cuyahoga No. 106266, 2019-
Ohio-4780; State v. Churn, 8th Dist. Cuyahoga No. 105782, 2019-Ohio-4052; State
v. Marshall, 8th Dist. Cuyahoga No. 87334,
2019-Ohio-1114; State v. McCornell, 8th
Dist. Cuyahoga No. 93274,
2015-Ohio-3764.
Accordingly, we find that Burks has failed to establish good cause for
the untimely filing of his application for reopening.
Application denied.
_________________________________
FRANK DANIEL CELEBREZZE, III, JUDGE
MARY EILEEN KILBANE, P.J., and
CORNELIUS J. O’SULLIVAN, JR., J., CONCUR
