[Cite as State v. Dew, 2012-Ohio-434.]

 STATE OF OHIO, MAHONING COUNTY 

 IN THE COURT OF APPEALS 

 SEVENTH DISTRICT 

STATE OF OHIO, ) 

) CASE NO. 08 MA 62 

PLAINTIFF-APPELLEE, ) 

) 

- VS - ) OPINION 

) AND 

GREGORY DEW, ) JUDGMENT ENTRY 

) 

DEFENDANT-APPELLANT. ) 

CHARACTER OF PROCEEDINGS: Application for Reopening, Criminal 

Appeal from Common Pleas Court, 

Cases Nos. 07 CR 378 & 07 CR 1262. 

JUDGMENT: Application Denied. 

APPEARANCES: 

For Plaintiff-Appellee: Attorney Paul J. Gains 

Prosecuting Attorney 

Attorney Ralph M. Rivera 

Asst. Prosecuting Attorney 

21 W. Boardman Street, 6th Floor 

Youngstown, OH 44503 

For Defendant-Appellant: Gregory S. Dew, Pro-se 

 #543-986 

 Trumbull Correctional Institution 

 P.O. Box 901 

 Leavittsburg, OH 44430 

JUDGES: 

Hon. Mary DeGenaro 

Hon. Cheryl L. Waite 

Hon. Joseph J. Vukovich 

Dated: January 31, 2012
[Cite as State v. Dew, 2012-Ohio-434.]

PER CURIAM: 

{¶1} Appellant Gregory Dew, pro-se, has filed an application to reopen his 

appeal based on a claim of ineffective assistance of appellate counsel. However, Dew's 

application is untimely, and we conclude that he has failed to demonstrate good cause. 

Accordingly, his application to reopen his appeal is denied. 

{¶2} Dew was convicted of four counts of rape, two counts of gross sexual 

imposition, and one count of corruption of a minor on April 1, 2008, in the Mahoning 

County Court of Common Pleas, following a jury trial. The trial court sentenced him to an 

aggregate term of 43 years of imprisonment. On December 1, 2009, we reversed and 

vacated the trial court's judgment in part, holding that one count of gross sexual 

imposition and one count of rape were not supported by sufficient evidence because the 

State failed to set forth evidence of "force or threat of force." We upheld the remainder of 

Dew's convictions, resulting in a 31.5 year sentence. State v. Dew, 7th Dist. No. 08 MA 

62, 2009-Ohio-6537. 

{¶3} On December 14, 2009, Dew filed a motion for reconsideration, which we 

denied on January 21, 2010. He filed a memorandum in support of jurisdiction with the 

Ohio Supreme Court on January 14, 2010, and the Court denied the appeal on March 10, 

2010. State v. Dew, 124 Ohio St.3d 1510, 2010-Ohio-799, 922 N.E.2d 972. The United 

States Supreme Court denied Dew's petition for writ of certiorari on November 15, 2010. 

Dew v. Ohio, __ U.S. __, 131 S.Ct. 594, 178 L.Ed.2d 434 (2010). 

{¶4} On March 25, 2011, Dew filed a pro-se motion entitled "Appellant's Request 

to Extend the Number of Pages for Delayed Application for Reopening Pursuant to 

Appellate Rule 26(B)," which we denied on April 14, 2011 because 08MA62 was a closed 

case, thus we were unable to rule on the motion. Dew filed this same motion again on 

April 29, 2011, and we denied his motion for the same reasons on May 17, 2011. 

{¶5} On November 14, 2011, Dew filed the present application pro-se, with four 

affidavits attached. The State responded on November 17, 2011. Dew filed a pro-se 

motion for leave to reply to the State's response on November 23, 2011. We denied this 

motion on November 30, 2011 because App.R. 26(B) does not provide for such a reply. 
- 2 - 

{¶6} App.R. 26(B) allows a criminal defendant to challenge the constitutional 

effectiveness of appellate counsel by reopening the appeal. However, the rule provides 

that an application for reopening must be filed "within ninety days from journalization of 

the appellate judgment unless the applicant shows good cause for filing at a later time." 

Dew has failed to meet this deadline. Our opinion in his direct appeal was journalized on 

December 1, 2009. Dew filed his application for reopening on November 14, 2011, 

almost two years after the deadline expired. Thus, we can only review the merits of 

Dew's application if he can establish good cause for his untimely filing. Dew's claims do 

not constitute good cause. 

{¶7} Dew contends that because he is incarcerated, he lacked the ability to 

gather evidence and affidavits to support his motion. He claims that he was forced to rely 

on outside sources to obtain this evidence, which caused delays in filing. 

{¶8} As argued by the state, Dew's incarceration alone cannot establish good 

cause, and his arguments would apply to all offenders incarcerated after their convictions. 

If the sole fact that an offender is incarcerated constitutes good cause, this would render 

the time limit for filing in App.R. 26(B) meaningless. As the Ohio Supreme Court 

instructed: 

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. 

{¶9} Furthermore, although Dew contends that he encountered "unavoidable 

delays" in completing this application, he has failed to present any affidavits explaining 

why it took him almost two years to file. App.R. 26(B)(2)(e); State v. Styblo, 7th Dist. No. 

07 BE 18, 2011-Ohio-2000, ¶ 4. Instead, Dew's affidavits rehash prior legal arguments or 

are attempts to introduce new evidence after both a trial and direct appeal on the merits 

have already taken place. 
- 3 - 

{¶10} Because Dew failed to establish good cause for the delay in filing for 

reopening his appeal, his application for reopening is denied. 

DeGenaro, J., concurs. 

Waite, P.J., concurs. 

Vukovich, P., concurs.