State v. George

2018 Ohio 5026

Opinion

[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