[Cite as State v. Howell,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 92827

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

GEORGE HOWELL

DEFENDANT-APPELLANT

JUDGMENT: APPLICATION DENIED

Cuyahoga County Common Pleas Court Case No. CR-510229 Application for Reopening Motion No. 445701

RELEASE DATE: July 25, 2011 2

ATTORNEY FOR APPELLANT

George Howell, pro se Inmate No. A-561-889 Mansfield Correctional Institution P.O. Box 788 Mansfield, Ohio 44901

ATTORNEYS FOR APPELLEE

William D. Mason Cuyahoga County Prosecutor

By: Mary McGrath Assistant County Prosecutor 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113

EILLEN A. GALLAGHER, J.:

{¶ 1} In State v. Howell, Cuyahoga County Court of Common Pleas

Case No. CR-510229, applicant, George Howell, was found guilty by a jury of:

aggravated robbery with firearm and forfeiture specifications; two counts of

felonious assault with firearm and forfeiture specifications; and having

weapons while under disability with a forfeiture specification. This court

affirmed that judgment in State v. Howell, Cuyahoga App. No. 92827,

. The Supreme Court of Ohio affirmed that judgment “on the 3

authority of State v. Hodge,

,

,

.” In re Cases Held for the Decision in State v. Hodge,

,

.

{¶ 2} Howell has filed with the clerk of this court an application for

reopening. He asserts that appellate counsel was ineffective and did not

assign as error the trial court’s failure to hold a hearing “to examine the jury

to determine misconduct that would cause a mistrial.” Application at 3. We

deny the application for reopening. As required by App.R. 26(B)(6), the

reasons for our denial follow.

{¶ 3} Initially, we note that App.R. 26(B)(1) provides, in part: “An

application for reopening shall be filed * * * within ninety days from

journalization of the appellate judgment unless the applicant shows good

cause for filing at a later time.” App.R. 26(B)(2)(b) requires that an

application for reopening include "a showing of good cause for untimely filing

if the application is filed more than ninety days after journalization of the

appellate judgment.”

{¶ 4} This court’s decision affirming applicant’s conviction was

journalized on July 22, 2010. The application was filed on June 28, 2011,

clearly in excess of the 90-day limit.

{¶ 5} Howell avers that he was unable to file a timely application

because: “Appellate counsel failed to give me a copy of my trial transcripts * * 4

* .” Affidavit of George Howell, ¶1. In State v. Day, Cuyahoga App. No.

83138,

, reopening disallowed,

, the

applicant’s “assertions regarding his inability to secure transcripts through

his appellate counsel * * * [were] not sufficient to establish good cause for

failure to file a timely application for reopening.” Id. ¶6. Likewise, we must

also conclude that Howell’s inability to gain access to his appellate transcript

does not demonstrate good cause for failing to file a timely application.

{¶ 6} The Supreme Court has upheld judgments denying applications

for reopening solely on the basis that the application was not timely filed and

the applicant failed to show “good cause for filing at a later time.” App.R.

26(B)(1). See, e.g., State v. Gumm,

,

,

; State v. LaMar,

,

,

. Applicant’s failure to demonstrate good cause is a sufficient basis for

denying the application for reopening. See, also, State v. Collier (June 11,

1987), Cuyahoga App. No. 51993, reopening disallowed,

,

Motion No. 370333; State v. Garcia (July 8, 1999), Cuyahoga App. No. 74427,

reopening disallowed,

, Motion No. 370916.

{¶ 7} Additionally, on direct appeal, this court granted Howell leave to

file a pro se brief. He filed a brief with a supplemental assignment of error.

State v. Howell, Cuyahoga App. No. 92827,

, ¶1 and 41.

“[T]he courts have repeatedly ruled that res judicata bars an application to 5 reopen when the appellant has filed a pro se brief.” (Citations deleted.)

State v. Wright, Cuyahoga App. Nos. 92594 and 95096, 2010-Ohio 243 and

, reopening disallowed,

. The fact that

Howell filed a pro se brief and assignment of error on direct appeal provides a

sufficient basis for denying reopening.

{¶ 8} As a consequence, Howell has not met the standard for reopening.

Accordingly, the application for reopening is denied.

EILEEN A. GALLAGHER, JUDGE

MELODY J. STEWART, P.J., and FRANK D. CELEBREZZE, JR., J., CONCUR