[Cite as State v. Pierce , 2023
- Ohio
- 3466.] COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE OF OHIO , :

Plaintiff

- Appell ee , : No. 1 11605 v. : JOHNNIE A. PIERCE , :

Defendant

- Appell ant

. :

JOURNAL ENTRY AND OPINION
JUDGMENT: APPLICATION DENI ED RELEASED AND JOURNALIZED: September 2 7 , 2023
Cuyahoga County Court of Common Pleas Case No s. CR

- 19
- 642073

- A and CR

- 20
- 655219

- A

Application for Reopening Motion No. 566347
Appearances: Johnnie A. Pierce, pro se.
KATHLEEN ANN KEOUGH, P. J.:

Applicant, Johnnie A. Pierce, seeks to reopen his appeal in State v. Pierce , 2023
- Ohio

- 528, 209 N.E.3d 221 (8th Dist.). Pierce claims that appellate counsel was ineffective because counsel did not raise several issues that Pierce argues would have impacted the verdicts in his cases. Pierce’s application forreopening is untimel y without a showing of good cause to excuse the delayed filing.

Therefore, it must be denied. I. Procedural and Factual Background

Pierce was charged separately and convicted of offenses stemming from two incidents

— a July 2019 bar fight in Cuyahoga C. P. No. CR

- 19
- 642073

- A, and a December 2020 traffic stop that resulted in a five

- hour standoff between police and Pierce in Cuyahoga C.P. No. CR

- 20
- 655219

- A. In these cases, Pierce received an indefinite sentence of two to three years and a 30

- month senten ce, respectively. These sentences were imposed consecutiv ely to each other. Pierce appealed. Appellate counsel representing Pierce filed an appellate brief raising four errors for review:
I. There was insufficient evidence produced at trial to support a f inding of guilt on all counts.
II. The jury lost their way by finding the defendant guilty against the manifest weight of the evidence.
III. The trial court erred when it imposed the maximum sentence without support in the record and by ordering the sentences to be served consecutively.
IV. The sentence of the court imposing an indefinite term of incarceration pursuant to S.B. 201 (the “Reagan Tokes Act”) is unconstitutional. In an opinion journalized on February 23, 2023, this court overruled these assigned

errors and affirmed the convictions. Pierce at ¶ 56.On July 25, 2023, Pierce filed an application for reopening. This

application, filed 152 days after the journalization of the appellate decision, does not present statements of proposed assignments of error that appellate counsel should have raised. It does broadly raise issues that appellate counsel should have addressed according to Pierce. Pierce mentions claims related to speedy trial and that the judge assigned to his case was biased against him becau se of a bar complaint Pierce filed. 1 He further argues that appellate counsel did not review the trial transcript 2 or file an optional reply brief. Finally, he alleges that racial discrimination played a role in the December 2020 police stop of a car i n which Pierce was a passenger. Pierce argues that appellate counsel should have focused on perceived civil rights abuses by the police officers that were involved in the December 2020 stop.

The state did not file a brief in opposition to the application for reopening. II. Absence of Good Cause for Delayed Filing

An application for reopening under App.R. 26(B) provides a limited means of asserting claims of ineffective assistance of appellate counsel. According to the rule, an application mus t be filed within 90 days of the date of journalization of the appellate decision. App.R. 26(B)(1). If the application is not filed within this

1 This judge was replaced by a different judge prior to trial.

2 This claim is contradicted by the appellate brief counsel filed in the appeal. Th roughout the brief, appellant’s counsel extensively cited to the transcript. If appellate counsel did not review the transcript, there would be no way for counsel to do so.period, the applicant must show good cause why the application could not have been

timely filed. App.R. 26(B) (2)(b). This is necessary to excuse the delay and reach the merits of the application. State v. Gumm , 103 Ohio St.3d 162, 2004

- Ohio

- 4755, 814 N.E.2d 861, ¶ 10. The failure to establish good cause in an untimely application is fatal. State v. McCall , 8t h Dist. Cuyahoga No. 104479, 2022

- Ohio

- 383, ¶ 5, citing
State v. Farrow , 115 Ohio St.3d 205, 2007

- Ohio

- 4792, 874 N.E.2d 526; State v. Keith , 119 Ohio St.3d 161, 2008

- Ohio

- 3866, 892 N.E.2d 912.

Pierce’s application for reopening was filed more than 90 days from the journalization of the appellate decision he seeks to reopen

— February 23, 2023 to July 25, 2023. Therefore, the application must establish good cause to excuse the delay. The applic ation does not provide any justification for the untimely filing or even mention the time periods set forth in App.R. 26(B)(1) and 26(B)(2)(b). The failure to timely file the application or provide good cause for the delayed filing requires this court to deny the application without addressing the merits. Keith at ¶ 8. Accordingly, the application to reopen the appeal is denied.

KATHLEEN ANN KEOUGH, PRESIDING JUDGE
EIL EEN A. GALLAGHER , J., and LISA B. FORBES , CONCUR