[Cite as State v. Henderson,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 95655

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

PAUL S. HENDERSON DEFENDANT-APPELLANT

JUDGMENT: APPLICATION DENIED

Cuyahoga County Court of Common Pleas Case No. CR-530899 Application for Reopening Motion No. 464772

RELEASE DATE: June 19, 2013 FOR APPELLANT

Paul S. Henderson, pro se Inmate No. 573-468 Marion Correctional Institution P.O. Box 57 Marion, Ohio 43302

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor By: Diane Smilanick Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 FRANK D. CELEBREZZE, JR., J.:

{¶1} On May 7, 2013, the applicant, Paul Henderson, pursuant to App.R. 26(B)

and State v. Murnahan,

,

(1992), applied to reopen this

court’s judgment in State v. Henderson, 8th Dist. No. 95655,

, in which

this court affirmed Henderson’s convictions for drug trafficking, drug possession, and

possession of criminal tools. Henderson claims that he was deprived of the effective

assistance of appellate counsel. For the following reasons, this court denies the

application.

{¶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. The May 2013

application was filed approximately 14 months after this court’s decision. Thus, it is

untimely on its face. In an effort to establish good cause, Henderson argues that he did

not receive notice of this court’s decision until August 2012, and then had difficulty in

obtaining the record from the public defender’s office, and then needed months of

research to formulate his argument. However, lack of a transcript does not state good

cause for an untimely filing. State v. Lawson, 8th Dist. No. 84402,

,

reopening disallowed,

.

{¶3} Moreover, the Supreme Court of Ohio in State v. LaMar,

,

,

, and State v. Gumm,

,

,

, 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 lawyers continued to represent them, and their appellate

lawyers 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. 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).

{¶4} Additionally, Henderson represented himself on appeal. Throughout these

proceedings, Henderson repeatedly submitted filings, such as motions for default

judgment and summary judgment, to obtain his immediate release from prison. The final

brief was his own work, and in his supporting affidavit he states: “I was ineffective

because I failed to raise a winning issue.” Because Henderson represented himself in the

appeal, he is now precluded from arguing ineffective assistance of appellate counsel.

State v. Boone,

,

(7th Dist. 1996); and State v.

Jackson, 8th Dist. No. 80118,

. As the United States Supreme Court

noted in Faretta v. California,

,

,

(1975),

fn. 46, “a defendant who elects to represent himself cannot thereafter complain that the

quality of his own defense amounted to a denial of ‘effective assistance of counsel.’”

{¶5} Accordingly, this court denies the application to reopen. FRANK D. CELEBREZZE, JR., JUDGE

MARY J. BOYLE, P.J., and LARRY A. JONES, SR., J., CONCUR