State v. Reid , 2013 Ohio 4027 ( 2013 )

[Cite as State v. Reid, 2013-Ohio-4027.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 93222
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
COLIN E. REID
DEFENDANT-APPELLANT
JUDGMENT:
APPLICATION DENIED
Cuyahoga County Court of Common Pleas
Case No. CR-518944
Application for Reopening
Motion No. 465983
RELEASE DATE: September 13, 2013
ATTORNEY FOR APPELLANT
Michael J. Goldberg
The Goldberg Law Firm
323 Lakeside Avenue
Suite 450
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Mary H. McGrath
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, OH 44113
EILEEN A. GALLAGHER, J.:
{¶1} Applicant, Colin E. Reid, pled guilty and was sentenced on convictions of
attempted aggravated robbery, kidnapping, felonious assault, failure to comply, vandalism
and driving while under the influence in Cuyahoga C.P. No. CR-518944. Reid, through
counsel, pursued an appeal in State v. Reid, 8th Dist. Cuyahoga No. 93222. However,
the appeal was voluntarily dismissed on December 18, 2009. This court never issued or
journalized any decision on Reid’s appeal. On June 20, 2013, Reid filed a delayed
application to reopen the appeal pursuant to App.R. 26(B), which provides, in part, as
follows:
A defendant in a criminal case may apply for reopening of the appeal from
the judgment of conviction and sentence, based on a claim of ineffective
assistance of appellate counsel. An application for reopening shall be filed
in the court of appeals where the appeal was decided within ninety days
from journalization of the appellate judgment unless the applicant shows
good cause for filing at a later time.
{¶2} Since this court did not issue or journalize an appellate judgment that
decided an appeal from Reid’s judgment of conviction and sentence, App.R. 26(B) does
not apply. We are prevented from considering the application to reopen. State v. Bennett,
8th Dist. Cuyahoga No. 90815, 2009-Ohio-343, ¶ 2, citing, State v. Skaggs, 8th Dist.
Cuyahoga No. 76301, 1999 Ohio App. LEXIS 4680 (May 12, 1999), reopening
disallowed (Sept. 21, 1999), Motion No. 7505 (other citations omitted).
{¶3} Even if App.R. 26(B) did apply, we still could not consider Reid’s untimely
application because it does not set forth good cause for the delay. The application was
not filed until June 20, 2013 — three and one-half years after the voluntary dismissal of
Reid’s appeal. Reid maintains he received ineffective assistance of counsel at all stages
of the proceedings that should excuse him from the 90-day time limit set forth in App.R.
26(B). Reliance on counsel, or continued representation by counsel, does not establish
good cause for failure to comply with the 90-day time limit. State v. LaMar, 102 Ohio
St.3d 467, 2004-Ohio-3976, 812 N.E.2d 970, ¶ 7-9; State v. Gumm, 103 Ohio St.3d 162,
2004-Ohio-4755, 814 N.E.2d 861.
{¶4} Accordingly, this court denies the application to reopen.
EILEEN A. GALLAGHER, JUDGE
KATHLEEN ANN KEOUGH, P.J., and
EILEEN T. GALLAGHER, J., CONCUR