[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, 2012
FOR 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 44113 
MARY 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