[Cite as State v. McGee, 2013-Ohio-1853.]

STATE OF OHIO, MAHONING COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

STATE OF OHIO ) CASE NO. 07 MA 137 

) 

PLAINTIFF-APPELLEE ) 

) 

VS. ) OPINION AND 

) JUDGMENT ENTRY 

GREGORY McGEE ) 

) 

DEFENDANT-APPELLANT ) 

CHARACTER OF PROCEEDINGS: Appellant’s Delayed Application for 

Reopening of Appeal 

JUDGMENT: Leave to file Denied. 

Application Dismissed. 

APPEARANCES: 

For Plaintiff-Appellee: Atty. Paul J. Gains 

Mahoning County Prosecutor 

Atty. Ralph M. Rivera 

Assistant Prosecuting Attorney 

21 West Boardman Street, 6th Floor 

Youngstown, Ohio 44503 

For Defendant-Appellant: Atty. Mark J. Miller 

Shaw & Miller 

555 City Park Avenue 

Columbus, Ohio 43215 

JUDGES: 

Hon. Cheryl L. Waite 

Hon. Gene Donofrio 

Hon. Joseph J. Vukovich 

Dated: May 1, 2013
[Cite as State v. McGee, 2013-Ohio-1853.]

PER CURIAM. 

{¶1} Appellant Gregory McGee has filed a delayed application to reopen his 

appeal. Appellant was convicted following a jury trial of murder, with a firearm 

specification, and of having a weapon while under a disability. He was sentenced on 

July 13, 2007, to 15 years to life in prison for murder, 3 years for the firearm 

specification, and 3 years for the weapons disability charge. He filed a direct appeal. 

We affirmed the conviction and sentence on December 4, 2009. On February 28, 

2013, he filed this application to reopen. Appellant now argues that appellate 

counsel was ineffective for failing to raise a variety of speedy trial issues on appeal. 

Appellee has filed a memorandum in opposition to granting leave to file the delayed 

application to reopen. 

{¶2} App.R. 26(B)(1) states: 

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. 

{¶3} The purpose of reopening an appeal under App.R. 26(B) is to allow a 

criminal defendant to establish ineffective assistance of appellate counsel as part of 

the direct appeal. The analysis found in Strickland v. Washington, 466 U.S. 668, 

687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), is used to determine whether a 
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defendant received ineffective assistance of appellate counsel. See State v. 

Sheppard, 91 Ohio St.3d 329, 330, 744 N.E.2d 770 (2001); State v. Spivey, 84 Ohio 

St.3d 24, 25, 701 N.E.2d 696 (1998). In order to show ineffective assistance, 

Appellant must prove both that his appellate counsel was deficient for failing to raise 

the issues he now presents and that he was prejudiced by this failure. Appellant 

must show that there was a reasonable probability of success on appeal had counsel 

presented those claims. Sheppard at 330. Moreover, Appellant “bears the burden of 

establishing that there was a ‘genuine issue’ as to whether he has a ‘colorable claim’ 

of ineffective assistance of counsel on appeal.” Spivey at 25. 

{¶4} Appellant was required to file his App.R. 26(B) application for reopening 

within 90 days of the journalization of our judgment entry. “Consistent enforcement 

of the rule's deadline by the appellate courts in Ohio protects on the one hand the 

state's legitimate interest in the finality of its judgments and ensures on the other 

hand that any claims of ineffective assistance of appellate counsel are promptly 

examined and resolved.” State v. Gumm, 103 Ohio St.3d 162, 2004-Ohio-4755, 814 

N.E.2d 861, ¶7. 

{¶5} Appellant did not timely file his application to reopen. Instead, he filed 

the application on February 28, 2013, almost three years past the deadline set by 

App.R. 26(B)(1). 

{¶6} If an application for reopening is not filed within the 90-day period set 

forth in App.R. 26(B)(1), an appellant must make a showing of good cause justifying 

the delay in filing. App.R. 26(B)(2) states, in pertinent part: 
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An application for reopening shall contain all of the following: 

* * * 

(b) A showing of good cause for untimely filing if the application is filed 

more than ninety days after journalization of the appellate judgment. 

{¶7} We determine what constitutes “good cause” for accepting a late 

application to reopen using a flexible standard, often reviewing the degree of 

tardiness compared to the reasons given for late filing. State v. Baker, 7th Dist. No. 

03 CO 24, 2005-Ohio-565, ¶5 (one-year delay in filing the application to reopen was 

not allowed); compare State v. Hicks, 6th Dist. No. L-02-1119, 2005-Ohio-2947 (oneday delay in filing application to reopen was granted). 

{¶8} Appellant claims that he had good cause to file this application three 

years late because his speedy trial issue was complex. Appellant states that he is 

not himself a lawyer and had no reason to dispute the advice of his counsel that 

there was no viable speedy trial issue, and that he only recently hired private counsel 

to investigate the issue. These do not present sufficient reasons for allowing a 

delayed reopening of an appeal. 

{¶9} The fact that Appellant was untrained in the law does not establish 

good cause. State v. Dew, 7th Dist. No. 08 MA 62, 2012-Ohio-434, ¶8; State v. 

Ramirez, 8th Dist. No. 78364, 2005-Ohio-378, ¶4. “Ignorance of the law does not 

establish good cause to excuse an untimely filing application for relief under App.R. 

26(B).” State v. Styblo, 7th Dist. No. 07 BE 18, 2011-Ohio-2000, ¶6. The additional 

fact that Appellant may have been partially deprived of legal research tools and 
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resources due to being incarcerated does not establish good cause for filing the 

application late. Dew at ¶7-8. 

{¶10} Appellant's claim that “he was unable to discover the trial errors 

because the trial was complex” likewise does not constitute good cause to reopen an 

appeal. State v. Witlicki, 74 Ohio St.3d 237, 238, 658 N.E.2d 275 (1996). The issues 

raised in this application do not appear to be overly complex. Appellant asserts that 

there was a statutory speedy trial error, and this type of error involves simple math: 

adding up the days between arrest and trial and subtracting any tolling periods. 

{¶11} Appellant also questions whether his counsel's waiver of his speedy 

trial rights is binding on him. The answer is yes: “A defendant's right to be brought to 

trial within the time limits expressed in R.C. 2945.71 may be waived by his counsel 

for reasons of trial preparation and the defendant is bound by the waiver even though 

the waiver is executed without his consent.” State v. McBreen, 54 Ohio St.2d 315, 

376 N.E.2d 593 (1978), syllabus. Once again, any questions dealing with the waiver 

of speedy trial rights have been part of the record and are not particularly complex. 

Therefore, they do not constitute good cause to reopen the appeal. 

{¶12} Appellant further contends that appellate counsel should have raised a 

speedy trial issue on appeal regarding events that occurred after his trial counsel filed 

a motion to dismiss based on speedy trial on November 28, 2006. As stated earlier, 

the relevant information regarding this issue has been in the record and is not 

particularly complex. In fact, this alleged error would likely have been deemed as 

waived on appeal for the very reason that trial counsel failed to file a second motion 
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to dismiss on speedy trial grounds. See, e.g., State v. Trummer, 114 Ohio App.3d 

456, 470-471, 683 N.E.2d 392 (7th Dist.1996); State v. Glazer, 111 Ohio App.3d 769, 

773, 677 N.E.2d 368 (5th Dist.1996). There was no reason for appellate counsel to 

attempt to assign as error this speedy trial issue because it would have been 

summarily overruled on appeal. 

{¶13} Appellant's affidavit in support of his App.R. 26(B) application states 

that “[i]t took me several months to obtain the necessary funding” to hire additional 

counsel after his direct appeal ended. (McGee Aff., ¶18.) Appellant gives no 

explanation whatsoever as to why it took several years, rather than several months, 

to file the application for reopening. Even if Appellant had good cause for filing the 

late application at the time he hired new counsel, such good cause does not continue 

to exist months or years later. See State v. Fox, 83 Ohio St.3d 514, 516, 700 N.E.2d 

1253 (1998). 

{¶14} For all the aforementioned reasons, we find that Appellant did not 

establish good cause for the three-year delay in filing the application for reopening. 

Leave to file the delayed application is denied and the application is hereby 

dismissed. 

Waite, J., concurs. 

Donofrio, J., concurs. 

Vukovich, J., concurs.