[Cite as State v. Kimbrough , 2012-Ohio-4931.] 

# Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 97568



## STATE OF OHIO

PLAINTIFF-APPELLEE

vs.



## MICHAEL C. KIMBROUGH

DEFENDANT-APPELLANT



### JUDGMENT: APPLICATION DENIED

Cuyahoga County Common Pleas Court Case No. CR-546878 Application for Reopening Motion No. 459002

RELEASE DATE: October 24, 2012FOR APPELLANT

Michael C. Kimbrough, pro se Inmate No. 620-083 Lorain Correctional Institution 2075 South Avon Belden Road Grafton, Ohio 44044

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor BY: Scott Zarzycki Mark J. Mahoney Assistant County Prosecutors 9th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113MARY J. BOYLE, P.J.:

{¶1} On Friday, September 28, 2012, the applicant, 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. Kimbrough , 8th Dist. No. 97568, 2012-Ohio-2927, in which

this court affirmed Kimbrough’s convictions and sentences for rape, kidnapping, and

felonious assault. 1 Kimbrough now argues that his appellate counsel was ineffective for

not arguing that the trial judge did not properly inform him about postrelease control and

that the trial judge did not properly justify consecutive sentences. On October 9, 2012,

the state of Ohio filed its brief in opposition. 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. In the present

case, this court journalized its decision on June 28, 2012, and Kimbrough filed his

application on September 28, 2012, two days beyond the 90-day limitation. (Two days

1 The grand jury indicted Kimbrough for multiple counts of rape, attempted rape, kidnapping, gross sexual imposition, and felonious assault. He pleaded guilty to one count each of rape, kidnapping, and felonious assault. The trial judge merged kidnapping and felonious assault as allied offenses and sentenced Kimbrough to nine years each on rape and kidnapping to run consecutively. On appeal, he argued that his plea was not knowingly, intelligently, and voluntarily made and that all three charges should have been merged.in June, plus 31 days in July, plus 31 days in August, plus 28 days in September, equals

92 days.) Thus, it is untimely on its face. Kimbrough does not proffer any good cause.

{¶3} 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 counsel continued to represent them, and their appellate

counsel 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,

imagination, and ignorance of the law do not establish good cause for failure to seek

timely relief under App.R. 26(B). Moreover, this court has denied applications to

reopen even if they are filed only two days late. State v. Gray, 8th Dist. No. 90981,

2009-Ohio-4360.

{¶4} Accordingly, this court denies the application to reopen.

______________________________________ MARY J. BOYLE, PRESIDING JUDGE

COLLEEN CONWAY COONEY, J., and MARY EILEEN KILBANE, J., CONCUR