[Cite as State v. Branch, 2022-Ohio-3910.]

 COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :

No. 110050

v. :

MARCUS BRANCH, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: DENIED

RELEASED AND JOURNALIZED: November 2, 2022

 __________________________________

 Cuyahoga County Court of Common Pleas

Case No. CR-20-647543-A

Application for Reopening

Motion No. 556256

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting 

Attorney and Daniel T. Van, Assistant Prosecuting 

Attorney, for appellee. 

Marcus A. Branch, pro se.

EMANUELLA D. GROVES, J.:

On July 6, 2022, the applicant, Marcus Branch, 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. Branch, 8th Dist. Cuyahoga No. 110050, 
2022-Ohio-132, in which this court affirmed his conviction and sentence for 

attempted felonious assault. Branch now asserts that his appellate counsel was 

ineffective for not raising the following issues: (1) his conviction was barred by 

double jeopardy, (2) the Adult Parole Authority violated the doctrine-of-separation 

of powers by finding him in violation of postrelease control and returning him to 

prison, and (3) the state violated his due process rights by allowing him to be sent to 

prison for violating postrelease control before trying him on current case. On 

September 22, 2022, the state of Ohio filed its brief in opposition. For the following 

reasons, this court denies the application to reopen. 

In State v. Branch, Cuyahoga C.P. No. CR-18-632204-A, Branch pled 

guilty to pandering obscenity. On January 3, 2019, the trial court sentenced him to 

11 months in prison and five-years mandatory postrelease control and granted him 

128 days of jail-time credit. 

After being released, Branch approached his girlfriend to help him 

rob someone. The girlfriend said that they fought, but that she did not remember 

what happened after that. A couple of days later, the girlfriend was found severely 

beaten. The grand jury indicted Branch for felonious assault and aggravated 

robbery in State v Branch, Cuyahoga C.P. No. CR-20-647543-A. 

Branch claims that after beating his girlfriend, he self-reported this to 

the Adult Parole Authority, which returned him to prison for five-and-a-half 

months, from September 3, 2019, to February 17, 2020, for violating postrelease 

control. Branch attached to his application a certification of incarceration from the 
Ohio Department of Rehabilitation and Correction that states he served PRC time 

from October 2, 2019, to February 17, 2020. This documentation does not appear 

to be in the record prior to Branch attaching it to the instant application to reopen.

In September 2020, the state amended the felonious assault count to 

attempted felonious assault, a third-degree felony. Branch pled guilty to that charge, 

and the state nolled the aggravated robbery count. In an October 15, 2020 journal 

entry, the trial judge sentenced Branch to 36-months in prison. The judge also ruled 

that this conviction violated his postrelease control in the pandering obscenity case 

and terminated the postrelease control and ordered Branch to serve the remainder 

of the postrelease control term as a prison sanction consecutive to the 36-months 

term by operation of law. 

In the direct appeal, Branch’s counsel argued the following three 

assignments of error: (1) the record did not support a maximum sentence, (2) R.C. 

2929.141 (new felony committed by person on postrelease control) is 

unconstitutional on its face and as applied to Branch, and (3) the trial court abused 

its discretion when it did not grant Branch a second psychiatric evaluation. In the 

second assignment of error, appellate counsel argued that Ohio’s postrelease control 

statute, allowing a person to be sent to prison for a new felony by both the Adult 

Parole Authority and the trial judge, as happened to Branch in this case, violated the 

Fifth Amendment protection against double jeopardy. Appellate counsel 
acknowledged decisions upholding the constitutionality of R.C. 2929.141.1

 On 

January 20, 2022, this court affirmed in part because the record did not contain any 

evidence of Branch serving five-and-a-half months incarceration for violating 

postrelease control. State v Branch, 8th Dist., Cuyahoga No. 110050, 2022-Ohio132.

On February 1, 2022, Branch filed a pro se motion for reconsideration 

arguing that using the attempted felonious assault crime to send him to prison twice 

for violating postrelease control and also for committing attempted felonious assault 

violates double jeopardy. This court denied his motion for reconsideration on 

March 31, 2022. On April 27, 2022, Branch filed pro se motions for en banc 

consideration and for delayed reconsideration resurrecting the double jeopardy

argument with the proof of the certification of incarceration. This court denied those 

motions on May 6, 2022. Branch filed the App.R. 26(B) application on July 6, 2022.

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 

instant case, this court issued its decision on January 20, 2022. Thus, the 

application is untimely on its face. In an effort to show good cause, Branch alleges 

that he had to get proof of his prior incarceration. However, this court has held that 

1 Branch misinterprets State v. Martello, 97 Ohio St.3d 398, 780 N.E.2d 250

(2002). In that case, the Supreme Court of Ohio ruled that if a person on postrelease 

control commits a crime, returning that person to prison for violating postrelease control 

and prosecuting the person for that new crime does not violate the Double Jeopardy 

Clauses. State v. Dunne, 8th Dist. Cuyahoga No. 100460, 2014-Ohio-3323.
experiencing delays in obtaining records related to one’s conviction does not 

establish good cause for untimely filing. State v. Nagy, 8th Dist. Cuyahoga No. 

105935, 2019-Ohio-2319, and State v. Young, 8th Dist. Cuyahoga No. 109169, 2022-

Ohio-308. 

Moreover, 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 lawyers continued to represent them, 

and their appellate lawyers 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, lack of imagination, and ignorance of the 

law do not establish good cause for failure to seek timely relief under App.R. 26(B). 

Thus, any delay Branch experienced in obtaining the records does not state good 

cause.

The court further notes that this is the fourth time in this appeal that 

the issue of double jeopardy has been raised, once by counsel and three times by 

Branch pro se. Because this court has previously considered and rejected Branch’s 
double jeopardy argument, res judicata bars this application. State v. Tyler, 71 Ohio 

St.3d 398, 643 N.E.2d 1150 (1994).

Accordingly, this court denies the application to reopen.

_________________________

EMANUELLA D. GROVES, JUDGE

LISA B. FORBES, P.J., and

MARY EILEEN KILBANE, J., CONCUR