State v. McGee, 2013 Ohio 1853

McGee was convicted by jury of murder with a firearm specification and of having a weapon while under a disability; sentenced to 15 years to life, 3 years for the firearm, and 3 years for the disability charge; direct appeal affirmed in 2009; filed a delayed application to reopen in 2013 claiming ineffective appellate assistance on speedy-trial issues.
App.R. 26(B) allows reopening within 90 days of journalization unless good cause is shown for delay; here the judgment entry was journalized in 2009 and the reopening application was filed in 2013.
The court applies Strickland to determine ineffective assistance in appellate counsel in the reopening context; applicant must show deficient performance and prejudice; there must be a colorable claim of ineffective assistance.
The trial court emphasized finality and prompt review of claims; late filing must be excused by good cause; Ohio precedent requires timely filing and substantial justification for extension.
Appellant did not timely file; instead, he waited almost three years beyond the deadline; the court must assess whether good cause justifies the delay.
The court ultimately denied leave to file the delayed application and dismissed the reopening request.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether McGee showed good cause for late filing	McGee (McGee) argues complex speedy-trial issues justify delay	McGee argues lack of counsel expertise and late hiring explain delay	No good cause; three-year delay not excused
Whether the delay was excused by complexity or counsel advice	Complex issues and reliance on counsel support late filing	Delay not justified by complexity or later counsel hire	Delay not excused; complexity not sufficient
Whether there is a colorable claim of ineffective assistance of appellate counsel	Appellant asserts counsel failed to raise speedy-trial issues on appeal	Counsel's strategic decisions and waiver issues were not colorable on appeal	No colorable claim; no good cause shown for reopening

State v. Gumm, 103 Ohio St.3d 162 (2004-Ohio-4755) (finality and timeliness support refusing late App.R. 26(B) filing)
State v. Sheppard, 91 Ohio St.3d 329 (2001) (ineffective assistance analysis follows Strickland)
State v. Spivey, 84 Ohio St.3d 24 (1998) (colorable claim burden for appellate counsel ineffectiveness)
State v. Dew, 2012-Ohio-434 (7th Dist.) (ignorance of law not good cause; incarceration alone insufficient)
State v. Styblo, 2011-Ohio-2000 (7th Dist.) (late filing must be explained; lack of research tools not good cause)
State v. Fox, 83 Ohio St.3d 514 (1998) (good cause must exist despite delays; reasons must show timely action)
State v. Trummer, 114 Ohio App.3d 456 (1996) (waiver considerations may render issues nonviable on appeal)
State v. McBreen, 54 Ohio St.2d 315 (1978) (waiver of speedy-trial rights by counsel binding on defendant)