[Cite as State v. Jarrett, 2014-Ohio-488.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION

No. 98759

STATE OF OHIO 

PLAINTIFF-APPELLEE 

vs. 

KENNETH L. JARRETT

 DEFENDANT-APPELLANT

JUDGMENT:

APPLICATION DENIED 

Cuyahoga County Court of Common Pleas 

Case Nos. CR-554504, CR-558789, CR-559105, CR-559365, 

CR-559433, CR-559935, CR-562138, and CR-562549 

Application for Reopening 

Motion No. 469750 

RELEASE DATE: February 11, 2014 
FOR APPELLANT

Kenneth L. Jarrett, pro se 

Inmate No. 630-619 

Noble Correctional Institution 

15708 McConnelsville Road 

Caldwell, OH 43724 

ATTORNEYS FOR APPELLEE 

Timothy J. McGinty 

Cuyahoga County Prosecutor 

BY: Mary McGrath 

Assistant County Prosecutor 

The Justice Center 

1200 Ontario Street, 8th Floor 

Cleveland, OH 44113 
MELODY J. STEWART, J.: 

{¶1} On November 8, 2013, Kenneth Jarrett, filed a “Motion for leave to file 

delayed appeal 26(B).”1

 In this motion, Jarrett asks that this court order his former 

lawyer to provide him with the transcripts so he “can better perfect [his] claims” and that 

this court delay the time for filing his App.R. 26(B) application to reopen until he has 

received the transcript. Jarrett also submitted an affidavit in which he claims that his 

appellate counsel was ineffective for not arguing the following: (1) the state breached 

the plea agreement by not remaining silent during the sentencing as agreed, (2) the plea 

agreement was voidable in part regarding one claim of restitution, and (3) some of the 

counts should have merged as allied offenses.2

 Thus, it is uncertain whether Jarrett is 

trying to reopen this court’s judgment in State v. Jarrett, 8th Dist. Cuyahoga No. 98759, 

2013-Ohio-1663, or trying to toll the time for filing his App.R. 26(B) application. On 

November 26, 2013, the state of Ohio filed a memorandum in opposition, and Jarrett filed 

a reply on December 16, 2013. For the following reasons, this court denies the motion 

and/or the application to reopen. 

 1

This filing concerns only App.R. 26(B), an application to reopen. It is not a request for a 

delayed appeal pursuant to App.R. 5. 

2

 Jarrett pled guilty in eight different cases to charges of fraud, forgery, identity fraud, identity 

theft, grand theft, attempted grand theft, and possession of criminal tools. Appellate counsel argued 

that the trial court erred in imposing consecutive sentences because the total financial harm to the 

victims — $22,590 — did not justify consecutive sentences. This court affirmed reasoning that 

Jarrett’s conduct, including 16 prior felony convictions and the harm inflicted on the victims, was 

sufficiently serious to warrant consecutive sentences. 
{¶2} To the extent that Jarrett is trying to toll the time for filing an application to 

reopen until he gets the transcripts, such an effort is ineffective. In State v. Allen, 8th 

Dist. Cuyahoga No. 92482, 2010-Ohio-9, reopening disallowed, 2011-Ohio-588, Allen 

endeavored to toll the time for filing by submitting a “Notice of intent to file Criminal 

Rule 26(B)” and complaining that he had not yet been able to obtain his transcripts. 

This court rejected his attempt; the rules do not allow such a “notice” and the Supreme 

Court of Ohio has insisted on strictly enforcing the 90-day deadline. Furthermore, 

Jarrett has already tried to toll the time for filing an application to reopen, and this court 

denied his motion for extension of time on July 23, 2013 (Motion No. 466799). 

{¶3} To the extent that Jarrett has submitted an App.R. 26(B) application to 

reopen, it is untimely. 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. This 

court decided Jarrett’s case on April 25, 2013. Thus, his November 8, 2013 application 

is untimely on its face. In an effort to show good cause or “restart” the clock, Jarrett 

states that he needs the transcripts to “better perfect” his claims, that his attorney refused 

to send him the transcripts, and that this court’s administrator has not helped him to get 

his attorney to send him the transcript, despite Jarrett’s requests. However, lack of a 

transcript does not state good cause for an untimely filing. State v. Lawson, 8th Dist. 

Cuyahoga No. 84402, 2005-Ohio-880, reopening disallowed, 2006-Ohio-3839; and State 

v. Henderson, 8th Dist. Cuyahoga No. 95655, 2012-Ohio-1040, reopening disallowed, 
2013-Ohio-2524. Nor does the lack of help from court employees state good cause. 

Newburgh Hts. v. Chauncey, 8th Dist. Cuyahoga No. 75465, 2000 Ohio App. LEXIS 

6261 (Oct. 20, 2000). 

{¶4} In his reply, Jarrett admits that these excuses do not state good cause for 

untimely filing. He then argues that Ohio’s enforcement of the 90-day limitations period 

is so strict that good cause does not exist and that such strictness violates due process. 

The Supreme Court of Ohio implicitly addressed this argument 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. Citing Logan v. Zimmerman Brush Co., 455 

U.S 422, 437, 102 S.Ct. 1148, 71 L.Ed.2d 265, the court noted that states “may erect 

reasonable requirements for triggering the right to an adjudication.” Ohio did that “by 

creating a 90-day deadline for the filing of applications to reopen.” LaMar at ¶ 7. 

“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.” Gumm at ¶ 7. Strict enforcement of the rule is appropriate 

for what is essentially a “second crack at the apple.” 

{¶5} Jarrett admits that he knew he wanted to raise additional arguments from at 

least April 25, 2013. Thus, he should have filed, if necessary, a pro se application 

within the 90 days; “[w]hat he could not do was ignore the rule’s filing deadline.” 

LaMar at ¶ 7. In conclusion, Jarrett “offers no sound reason why he — unlike so many 
other Ohio criminal defendants — could not comply with that fundamental aspect of the 

rule.” Id. at ¶ 9. 

{¶6} Accordingly, this court denies Jarrett’s motion and/or application to reopen. 

 

 

MELODY J. STEWART, JUDGE 

MARY J. BOYLE, A.J., and 

MARY EILEEN KILBANE, J., CONCUR