[Cite as State v. Gray , 2012-Ohio-3565.]



# Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 92646



## STATE OF OHIO

PLAINTIFF-APPELLEE

vs.



## RICARDO GRAY
DEFENDANT-APPELLANT



## JUDGMENT: APPLICATION DENIED

Cuyahoga County Court of Common Pleas Case No. CR-369837 Application for Reopening Motion No. 454323

RELEASE DATE: August 3, 2012-iFOR APPELLANT, PRO SE

Ricardo Gray Inmate No. 368-431 Richland Correctional Institution P.O. Box 8107 Mansfield, Ohio 44901

ATTORNEYS FOR APPELLEE

William D. Mason Cuyahoga County Prosecutor

Kristen L. Sobieski Assistant County Prosecutor 8 th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113PATRICIA ANN BLACKMON, A.J.:

{¶1} Ricardo Gray has filed an application for reopening pursuant to App.R. 26(B).

Gray seeks to reopen the appellate judgment rendered in State v. Gray , 8th Dist. No.

92646, 2010-Ohio-11, which affirmed his conviction for murder and felonious assault. We

decline to grant the application for reopening.

{¶2} App.R. 26(B)(2)(b) requires that Gray establish “a showing of good cause

for untimely filing if the application is filed more than 90 days after journalization of the

appellate judgment,” which is subject to reopening. The Supreme Court of Ohio, with

regard to the 90-day deadline provided by App.R. 26(B)(2)(b), has firmly established that:

We now reject [the applicant’s] claims that those excuses gave good cause to miss the 90-day deadline in App.R. 26(B). 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.

Ohio and other states “may erect reasonable procedural requirements for triggering the right to an adjudication,” Logan v. Zimmerman Brush Co. (1982), 455 U.S. 422, 437, 102 S.Ct. 1148, 71 L.Ed.2d 265, and that is what Ohio has done by creating a 90- day deadline for the filing of applications to reopen. * * * The 90-day requirement in the rule is applicable to all appellants, State v. Winstead (1996), 74 Ohio St.3d 277, 278, 658 N.E.2d 722, and [the applicant] offers no sound reason why he — unlike so many other Ohio criminal defendants — could not comply with that fundamentalaspect of the rule.(Emphasis added.) State v. Gumm , 103 Ohio St.3d 162, 2004-Ohio-4755, 814 N.E.2d 861, at ¶ 7. See also State v. Lamar , 102 Ohio St.3d 467, 2004-Ohio-3976, 812 N.E.2d 970; State v. Cooey , 73 Ohio St.3d 411, 1995-Ohio-328, 653 N.E.2d 252; State v. Reddick , 72 Ohio St.3d 88, 1995-Ohio-248, 647 N.E.2d 784.

{¶3} Gray is attempting to open the appellate judgment journalized on January 7,

2010. The application for reopening was not filed until April 18, 2012, more than 90 days

after journalization of the appellate judgment in Gray . Gray has failed in his effort to

establish “good cause,” with regard to the untimely filing of his application for reopening.

Defendant’s pursuit of other remedies, including an appeal to the Supreme Court of Ohio,

is an election of remedies, and thus does not provide good cause for a late filing of his

application to reopen his judgment. State v. Hornack , 8th Dist. No. 81021,

2005-Ohio-5843. Likewise, neither misplaced reliance on counsel nor lack of

communication between counsel and appellant provides good cause for a late filing of

his application for reopening. See State v. Alt , 8th Dist. No. 96289, 2012-Ohio-2054;

State v. Austin , 8th Dist. No. 87169, 2012-Ohio-1338; State v. Alexander, 8th Dist No.

81529, 2004-Ohio-3861.

{¶4} Accordingly, the application for reopening is denied.

PATRICIA ANN BLACKMON, ADMINISTRATIVE JUDGE

COLLEEN CONWAY COONEY, J., and KATHLEEN ANN KEOUGH, J., CONCUR