[Cite as State v. Brown, 2012-Ohio-5703.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

 JOURNAL ENTRY AND OPINION 

No. 77572

STATE OF OHIO

 PLAINTIFF-APPELLEE 

vs.

JERRY BROWN

 DEFENDANT-APPELLANT 

JUDGMENT: 

APPLICATION DENIED

Cuyahoga County Common Pleas Court 

Case No. CR-373957 

Application for Reopening 

Motion No. 460073 

RELEASE DATE: November 30, 2012 

ATTORNEY FOR APPELLANT
G. Michael Goins 

10803 Lake Avenue 

Suite 201 

Cleveland, Ohio 44102 

ATTORNEYS FOR APPELLEE

Timothy J. McGinty 

Cuyahoga County Prosecutor 

By: Kristen L. Sobieski 

Assistant County Prosecutor 

8th Floor Justice Center 

1200 Ontario Street 

Cleveland, Ohio 44113 

FRANK D. CELEBREZZE, JR., P.J.: 

{¶1} On November 9, 2012, the applicant, Jerry Brown, pursuant to 

App.R. 26(B), applied to reopen this court’s judgment in State v. Brown, 8th 

Dist. No. 77572, 2001 Ohio App. LEXIS 2082, in which this court affirmed 

Brown’s convictions and sentences for ten counts of rape, but vacated the 

finding that he was a violent sexual predator. 1 Brown asserts that his 

appellate counsel should have argued (1) that the trial court erred in not 

allowing defense counsel the opportunity to examine the victim’s mental state 

and (2) that his trial counsel was ineffective for failing to raise the issue of the 

 1 This court ruled that the violent sexual predator specification was inapplicable to Brown 

because the rapes occurred before the effective date of R.C. 2941.148 that established the 
victim’s mental state. On November 14, 2012, the state of Ohio filed its brief 

in opposition. For the following reasons, this court denies the application. 

{¶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 2012 application was filed approximately 11 years and six 

months after this court announced its decision. Thus, it is untimely on its 

face. Brown implicitly argues lack of funds as good cause for untimely filing. 

The memorandum in support of the application states that Brown’s family 

had just recently become able to retain legal counsel for this remedy. 

However, the courts of Ohio have ruled that lack of funds and lack of counsel 

do not provide good cause. State v. Brooks, 8th Dist. No. 94978, 

2011-Ohio-1679, reopening disallowed, 2012-Ohio-915. 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 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 reaffirmed the principle that lack of effort, 

 

specification.
imagination, and ignorance of the law do not establish good cause for failure 

to seek timely relief under App.R. 26(B). 

{¶3} Moreover, the lapse of 11 years is too long. In State v. Davis, 86 

Ohio St.3d 212, 214, 1999-Ohio-160, 714 N.E.2d 384, the Supreme Court of 

Ohio addressed a similar long lapse of time in filing the App.R. 26(B) 

application and ruled: “Even if we were to find good cause of earlier failures 

to file, any such good cause ‘has long since evaporated. Good cause can 

excuse the lack of a filing only while it exists, not for an indefinite period.’ 

State v. Fox, 83 Ohio St.3d 514, 516, 1998-Ohio-517, 700 N.E.2d 1253, 1254.” 

{¶4} App.R. 26(B)(2)(d) requires an applicant to include a “sworn 

statement of the basis for the claim that appellate counsel’s representation 

was deficient with respect to the assignments of error or arguments raised * * 

* and the manner in which the deficiency prejudicially affected the outcome of 

the appeal.” Brown submitted no sworn statement. In State v. Lechner, 72 

Ohio St.3d 374, 1995-Ohio-25, 650 N.E.2d 449, the Supreme Court of Ohio 

affirmed the denial of Lechner’s application that was solely on the basis of 

failing to comply with App.R. 26(B)(2)(d). The Supreme Court of Ohio ruled 

that the inclusion of the sworn statement is mandatory. State v. Tierney, 8th 

Dist. No. 78847, 2002-Ohio-2607, reopening disallowed, 2002-Ohio-6618. 

{¶5} Accordingly, this court denies the application. 
FRANK D. CELEBREZZE, PRESIDING JUDGE 

KATHLEEN A. KEOUGH, J., and 

EILEEN A. GALLAGHER, J., CONCUR