State v. Kimbrough

[Cite as State v. Kimbrough, 2012-Ohio-4931.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97568
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
MICHAEL C. KIMBROUGH
DEFENDANT-APPELLANT
JUDGMENT:
APPLICATION DENIED
Cuyahoga County Common Pleas Court
Case No. CR-546878
Application for Reopening
Motion No. 459002
RELEASE DATE: October 24, 2012
FOR APPELLANT
Michael C. Kimbrough, pro se
Inmate No. 620-083
Lorain Correctional Institution
2075 South Avon Belden Road
Grafton, Ohio 44044
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Scott Zarzycki
Mark J. Mahoney
Assistant County Prosecutors
9th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, P.J.:
{¶1} On Friday, September 28, 2012, the applicant, 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. Kimbrough, 8th Dist. No. 97568, 2012-Ohio-2927, in which
this court affirmed Kimbrough’s convictions and sentences for rape, kidnapping, and
felonious assault.1 Kimbrough now argues that his appellate counsel was ineffective for
not arguing that the trial judge did not properly inform him about postrelease control and
that the trial judge did not properly justify consecutive sentences. On October 9, 2012,
the state of Ohio filed its brief in opposition. For the following reasons, this court
denies the application to reopen.
{¶2} 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 present
case, this court journalized its decision on June 28, 2012, and Kimbrough filed his
application on September 28, 2012, two days beyond the 90-day limitation. (Two days
1 The grand jury indicted Kimbrough for multiple counts of rape, attempted rape, kidnapping,
gross sexual imposition, and felonious assault. He pleaded guilty to one count each of rape,
kidnapping, and felonious assault. The trial judge merged kidnapping and felonious assault as allied
offenses and sentenced Kimbrough to nine years each on rape and kidnapping to run consecutively.
On appeal, he argued that his plea was not knowingly, intelligently, and voluntarily made and that all
three charges should have been merged.
in June, plus 31 days in July, plus 31 days in August, plus 28 days in September, equals
92 days.) Thus, it is untimely on its face. Kimbrough does not proffer any good cause.
{¶3} 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 counsel continued to represent them, and their appellate
counsel 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,
imagination, and ignorance of the law do not establish good cause for failure to seek
timely relief under App.R. 26(B). Moreover, this court has denied applications to
reopen even if they are filed only two days late. State v. Gray, 8th Dist. No. 90981,
2009-Ohio-4360.
{¶4} Accordingly, this court denies the application to reopen.
______________________________________
MARY J. BOYLE, PRESIDING JUDGE
COLLEEN CONWAY COONEY, J., and
MARY EILEEN KILBANE, J., CONCUR