[Cite as State v. Austin, 2020-Ohio-26.]

COURT OF APPEALS OF OHIO 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

STATE OF OHIO, : 

 Plaintiff-Appellee, : 

 No. 105981 

 v. : 

 

JAMES AUSTIN, : 

 

 Defendant-Appellant. : 

 

JOURNAL ENTRY AND OPINION 

 JUDGMENT: APPLICATION DENIED

RELEASED AND JOURNALIZED: January 8, 2020

 

Cuyahoga County Court of Common Pleas 

Case No. CR-16-608502-A 

Application for Reopening 

Motion No. 533096 

 

Appearances: 

Michael C. O’Malley, Cuyahoga County Prosecuting 

Attorney, and Mary M. Frey, Assistant Prosecuting 

Attorney, for appellee. 

James Austin, pro se. 

EILEEN T. GALLAGHER, A.J.: 

Applicant, James Austin, seeks to reopen his appeal, State v. Austin, 

8th Dist. Cuyahoga No. 105981, 2019-Ohio-1983. In his application for reopening, 

he asserts five proposed assignments of error: 
I. Appellant was denied effective assistance of appellate counsel due to 

counsel’s failure to argue that appellant was denied due process when 

his plea was not knowing, voluntarily, and intelligently made related to 

the inadequate explanation of post-release [sic] control. 

II. The trial court erred to the prejudice of appellant when it failed to 

adequately inform appellant of the constitutional rights waived as a 

result of a guilty plea. 

III. Appellant was denied effective assistance of appellate counsel due 

to counsel’s failure to argue that appellant was denied due process 

when his plea was not knowing, voluntarily, and intelligently made 

related to the inadequate explanation of post-release [sic] control and 

the nature and number of the charges prior to the acceptance of the 

plea; specifically count nine. 

IV. Appellant did not receive the effective assistance of counsel when 

counsel failed to appeal the issue of the plea having never been properly 

accepted, prior to sentencing, by the trial court. 

V. Appellant did not receive the effective assistance of counsel when 

counsel failed to appeal the issue of the plea having never been properly 

accepted, prior to sentencing, by the trial court.

 Austin’s application is untimely without a showing of good cause. Therefore, it is 

denied. 

I. Procedural and Factual History 

On August 16, 2016, Austin was indicted and charged with numerous 

crimes, including aggravated burglary, kidnapping, aggravated robbery, robbery, 

intimidation of a crime victim or witness, carrying concealed weapons, improperly 

handling firearms in a motor vehicle, receiving stolen property, and having weapons 

while under disability. In the midst of a jury trial, as part a negotiated plea deal, 

Austin retracted his former not guilty pleas and pled guilty to two counts of 

aggravated burglary, one count of kidnapping, two counts of intimidation of a crime 
victim or witness, one count of having weapons while under disability, and one count 

of carrying concealed weapons. The remaining counts were dismissed, and the court 

proceeded immediately to sentencing. An aggregate eight-year sentence was 

imposed by the court on June 19, 2017. 

Austin timely appealed. Austin’s attorney filed a brief pursuant to 

Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1976), and 

requested to withdraw from the case. This court, in its independent review of the 

record, found nonfrivolous issues that could be asserted on appeal, and appointed 

new counsel to file a brief on Austin’s behalf. New counsel filed a brief asserting a 

single assignment of error: 

The plea bargain must be vacated or specifically enforced because the 

appellant was promised an eight-year sentence, which the court agreed 

to enter, and the court instead of honoring that agreement imposed 

eight years plus five years postrelease control. Appellant’s guilty pleas 

were thus not knowingly, voluntarily, and intelligently entered and 

Crim.R. 11 was violated as well as the Fifth, Sixth, and Fourteenth 

Amendments of the federal Constitution. 

Austin, 8th Dist. Cuyahoga No. 105981, 2019-Ohio-1983, at ¶ 1. On May 23, 2019, 

this court rejected this assignment of error and affirmed Austin’s convictions and 

sentence. Id. at ¶ 25-26. 

On October 24, 2019, Austin filed the instant application for 

reopening, along with a motion for leave to file his application for reopening. In the 

motion for leave he attempted to set forth good cause for the untimely filing of his 

application, something that must be done within the application itself. App.R. 

26(B)(2)(b). In the application itself, Austin put forth a condensed argument about 
why his application could not be timely filed, and raised the aforementioned five 

proposed assignments of error; many of which are variations on the assignment of 

error raised in the direct appeal. The state filed a timely brief in opposition pointing 

out that Austin’s application was untimely without a sufficient showing of good 

cause. Austin filed a reply to the state’s brief in opposition, which was stricken by 

this court. App.R. 26(B) does not provide for the filing of a reply brief, but instead 

requires the applicant to make arguments in a single application that does not 

exceed ten pages. App.R. 26(B)(4). 

II. Law and Analysis 

A. Timeliness of the Application 

App.R. 26(B) provides a limited means of asserting a claim of 

ineffective assistance of appellate counsel in a criminal appeal. State v. Gumm, 103 

Ohio St.3d 162, 2004-Ohio-4755, 814 N.E.2d 861. The rule provides that an 

application must be filed within 90 days of the date of journalization of the appellate 

decision. App.R. 26(B)(1). This deadline is strictly applied. Gumm at ¶ 7. See also 

State v. Lamar, 102 Ohio St.3d 467, 2004-Ohio-3976, 812 N.E.2d 970. Where an 

application is filed outside of that deadline, the applicant must show good cause to 

excuse the delay in filing. App.R. 26(B)(1). 

The application itself, limited to ten pages by App.R. 26(B)(4), must 

set forth good cause for untimely filing. State v. Glaze, 8th Dist. Cuyahoga No. 

105519, 2018-Ohio-4772, ¶ 8. Contrary to this rule, Austin attempted to establish 

good cause in a separate motion for leave to file the untimely application. Austin’s 
application exceeds the ten-page limitation in that his signature block extends to the 

eleventh page. As Austin’s application already technically exceeds the ten-page 

limit, this court will not consider the arguments raised in the motion for leave to file 

the application for reopening. See State v. Woods, 8th Dist. Cuyahoga No. 82789, 

2014-Ohio-296. Austin does set forth a cursory argument in the application for the 

delayed filing supported by his affidavit. Therefore, this court will analyze the 

reasons for the delayed filing in the application to determine whether Austin has 

established good cause. 

Austin asserts that on August 6, 2019, he was removed from prison 

and transported to county jail with no reason given to him. According to his 

affidavit, Austin was transported back to prison on September 7, 2019. Including 

the days of transportation, Austin spent 33 days outside of prison in county jail. He 

claims that he was unable to complete his application while in county jail for lack of 

resources. 

Normally, lack of access to legal materials or records does not 

constitute good cause. Glaze at ¶ 10; Woods at ¶ 5. Therefore, Austin’s transfer to 

county jail does not constitute good cause. However, even assuming this could 

constitutes good cause, “‘good cause can excuse the lack of a filing only while it 

exists, not for an indefinite period.’” Gumm, 103 Ohio St.3d 162, 2004-Ohio-4755, 

814 N.E.2d 861, ¶ 9, quoting State v. Fox, 83 Ohio St.3d 514, 516, 700 N.E.2d 1253 

(1998). 
154 days elapsed between the issuance of the appellate decision and 

the filing of the application. Subtracting the 33 days Austin spent in county jail and 

days in transit from the total elapsed time, Austin’s application was still not filed 

within 90 days. Austin does not explain why his application could not have been 

timely filed when this 33 days is excluded from the calculus. Austin’s assertions of 

good cause relate only to his brief transfer from prison to county jail and back again. 

Austin has failed to show good cause for the untimely filing of his application. As 

such, it is denied. 

Application denied. 

 ___ 

EILEEN T. GALLAGHER, ADMINISTRATIVE JUDGE 

SEAN C. GALLAGHER, J., and 

LARRY A. JONES, SR., J., CONCUR