State v. George , 2018 Ohio 5026 ( 2018 )

[Cite as State v. George, 2018-Ohio-5026.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 103708
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
ROBERT GEORGE
DEFENDANT-APPELLANT
JUDGMENT:
APPLICATION DENIED
Cuyahoga County Court of Common Pleas
Case No. CR-14-589369-A
Application for Reopening
Motion No. 522772
RELEASE DATE: December 11, 2018
FOR APPELLANT
Robert George
Inmate No. 680299
Mansfield Correctional Institution
P.O. Box 788
Mansfield, Ohio 44901
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
By: Mahmoud S. Awadallah
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
TIM McCORMACK, P.J.:
{¶1} On November 7, 2018, the applicant, Robert George, pursuant to App.R. 26(B) and
State v. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204 (1992), applied to reopen this court’s
judgment in State v. George, 8th Dist. Cuyahoga No. 103708, 2016-Ohio-7886, in which this
court affirmed George’s convictions for aggravated murder, murder, attempted aggravated
murder, discharge of a firearm on or near a prohibited premises, and four counts of felonious
assault.1 George now asserts that his appellate counsel should have argued that the surveillance
camera footage should not have been allowed as evidence because it was not authenticated and
that the judge improperly “allowed evidence from a case that was pinned into [George’s] murder
1
On August 17, 2014, surveillance cameras recorded George and his codefendant in a Food Mart. At trial,
George’s mother, several police officers, and acquaintances identified George as one of the men in the recording.
Other surveillance cameras recorded George and the codefendant leaving the store, coming back and shooting a
father, who was killed, and shooting his son, who was wounded in the leg.
case” and hearsay evidence. For the following reasons, this court denies the application to
reopen.
{¶2} 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 November 2018 application was filed
approximately two years after this court’s decision. Thus, it is untimely on its face. In an
effort to establish good cause, George claims that his poverty prevented him from obtaining his
transcript in a timely manner and that his appellate counsel’s inadequate performance caused the
untimely filing of the application.
{¶3} This court has repeatedly ruled that lack of a transcript does not state good cause for
an untimely filing. State v. Lawson, 8th Dist. Cuyahoga No. 84402, 2005-Ohio-880, reopening
disallowed, 2006-Ohio-3839; and State v. Blackmon, 8th Dist. Cuyahoga No. 48787, 1985 Ohio
App.LEXIS 6810 (July 18, 1985), reopening disallowed, 2000 Ohio App. LEXIS 6080.
{¶4} Similarly, in State v. Lamar, 8th Dist. Cuyahoga No. 49551, 1985 Ohio App. LEXIS
7284 (Oct. 15, 1985) reopening disallowed (Nov. 15, 1995), Motion No. 263398, this court held
that lack of communication with appellate counsel did not show good cause. In State v. Rios,
75 Ohio App.3d 288, 599 N.E.2d 374 (8th Dist.1991), reopening disallowed (Sept. 18, 1995),
Motion No. 266129, Rios maintained that the untimely filing of his application for reopening was
primarily caused by the ineffective assistance of appellate counsel; this court rejected that excuse.
Similarly, the failure of appellate counsel to argue the “dead bang” winner does not state good
cause for untimely filing. State v. Porter, 2016-Ohio-1115, 61 N.E.3d 589 (8th Dist.),
reopening disallowed, 2018-Ohio-1178.
{¶5} Moreover, 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. In those
cases, the applicants argued that after the court of appeals decided their cases, their appellate
lawyers continued to represent them, and their appellate lawyers could not be expected to raise
their own incompetence. Although the Supreme Court agreed with this latter principle, it
rejected the argument that continued representation provided good cause. In both cases, the
court ruled that the applicants could not ignore the 90-day deadline, even if it meant retaining
new counsel or filing the applications themselves. The court then reaffirmed the principle that
lack of effort, lack of imagination, and ignorance of the law do not establish good cause for
failure to seek timely relief under App.R. 26(B). Thus, George’s excuses do not state good
cause.
{¶6} Accordingly, this court denies the application to reopen.
TIM McCORMACK, PRESIDING JUDGE
MARY J. BOYLE, J., and
SEAN C. GALLAGHER, J., CONCUR