State v. Burks, 2022 Ohio 4397

Daryl Burks is a criminal defendant whose convictions and sentence for extortion, intimidation of a crime victim, and pandering obscenity were affirmed by this court on November 29, 2018.
Burks filed an application to reopen his appeal under App.R. 26(B) on August 31, 2022 — more than three years and eight months after journalization and well beyond the rule’s 90-day deadline.
Burks later filed a motion to amend his App.R. 26(B) application (Oct. 28, 2022) to attempt to add arguments showing good cause; the motion to amend was denied because App.R. 26(B) applications may not be amended and amendment may operate as a prohibited successive application.
The court considered Burks’s asserted reasons for delay (e.g., lack of communication with appellate counsel, limited prison access, ignorance of the law) but found they do not constitute good cause under controlling precedent.
The court denied the reopening application for failure to establish good cause and dismissed a duplicate filing as a duplicate.

Issue	Plaintiff's Argument	Defendant's Argument	Held
1. Whether Burks established "good cause" to excuse filing more than 90 days after appellate journalization	State: No; App.R. 26(B) 90-day deadline is mandatory and Burks gave no sound reason	Burks: Raised various excuses for delay and sought to amend to add more facts	Denied — failed to show good cause; strict enforcement of 90-day rule; even if good cause existed the delay was indefinite/too long
2. Whether an App.R. 26(B) application may be amended after filing	State: No provision to amend; amendment would be successive and prohibited	Burks: Moved to amend to cure deficiencies and add good-cause facts	Denied — no mechanism to amend; amendment treated as successive and not allowed
3. Whether attorney noncommunication, ignorance, or prison/library limitations constitute good cause	State: Precedent rejects these as sufficient bases	Burks: Claimed lack of notification by counsel, limited legal access, and ignorance of the law	Denied — prior Ohio decisions hold these excuses insufficient to show good cause

State v. Gumm, 103 Ohio St.3d 162 (2004) (rejects many excuses for missing App.R.26(B) 90‑day deadline and stresses finality)
State v. Davis, 86 Ohio St.3d 212 (1999) (good cause can excuse untimely filing only while it exists; cannot justify indefinite delay)
State v. Lamar, 102 Ohio St.3d 467 (2004) (reiterates strict application of App.R.26(B) deadline and limitations on excuses)
State v. Hill, 78 Ohio St.3d 174 (1997) (good-cause principles; timeliness requirements)
State v. Carter, 70 Ohio St.3d 642 (1994) (timeliness and limits on excusing late filings)