State v. Jackson , 2019 Ohio 3755 ( 2019 )

[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