State v. Townsend , 2013 Ohio 1653 ( 2013 )

[Cite as State v. Townsend, 2013-Ohio-1653.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97544
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
ALBERT TOWNSEND
DEFENDANT-APPELLANT
JUDGMENT:
APPLICATION DENIED
Cuyahoga County Court of Common Pleas
Case No. CR-531966
Application for Reopening
Motion No. 460015
RELEASE DATE: April 19, 2013
FOR APPELLANT
Albert Townsend, Pro Se
Inmate No. 580-463
Richland Correctional Institution
P.O. Box 8107
Mansfield, OH 44901
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Mary H. McGrath
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 8th Floor
Cleveland, OH 44113
MELODY J. STEWART, A.J.:
{¶1} Albert Townsend has filed an application for reopening pursuant to App.R.
26(B). Through the original application for reopening, filed on November 7, 2012,
Townsend is attempting to reopen the appellate judgment rendered in State v. Townsend,
8th Dist. No. 97544, 2012-Ohio-3452, which affirmed the trial court’s denial of a
postconviction motion. In addition, Townsend, through a “motion to withdraw and to
supplement amend [sic] cover page of this motion filed on November 7, 2012,” is
attempting to reopen the appellate judgment rendered by this court in State v. Townsend,
8th Dist. No. 94473, 2011-Ohio-86, which affirmed his conviction and sentence for the
offenses of aggravated robbery, robbery, and having weapons while under disability.
For the following reasons, we decline to reopen either of the two appeals previously filed
by Townsend.
{¶2} The appeal in Townsend, 8th Dist. No. 97544, supra, concerned the trial
court’s denial of a postconviction motion. However, an application for reopening, that
is filed pursuant to App.R. 26(B), can only be employed to reopen an appeal from the
judgment of conviction and sentence based upon a claim of ineffective assistance of
appellate counsel. State v. Loomer, 76 Ohio St.3d 398, 1996-Ohio-59, 667 N.E.2d 1209;
State v. Waver, 8th Dist. No. 97000, 2011-Ohio-6480. Since App.R. 26(B) applies
only to the direct appeal of a criminal conviction and sentence, it cannot be employed to
reopen an appeal that dealt with the denial of a postconviction motion.
{¶3} The appeal, in State v. Townsend, 8th Dist. No. 94473, supra, involved
Townsend’s conviction and sentence for the offenses of aggravated robbery, robbery, and
having weapons while under disability. Townsend, however, filed a prior application
for reopening, in Townsend, 8th Dist. No. 94473, which precludes consideration of the
present application for reopening. The Supreme Court firmly established that a
defendant-appellant may not file successive applications for reopening. State v.
Richardson, 74 Ohio St.3d 235, 1996-Ohio-258, 658 N.E.2d 273; State v. Cheren, 73
Ohio St.3d 137, 1995-Ohio-28, 652 N.E.2d 707; State v. Peeples, 73 Ohio St.3d 149,
1995-Ohio-36, 652 N.E.2d 717.
{¶4} It must also be noted, that even if the present application for reopening was
Townsend’s first application for reopening, the application was filed untimely. The
opinion in State v. Townsend, 8th Dist. No. 94473, supra, was journalized on January 13,
2011. Townsend was required to file a timely application for reopening, within 90 days
of January 13, 2011, or establish good cause for its untimely filing. Townsend did not
file this application for reopening until November 7, 2012, more than 90 days after
journalization of the appellate judgment that he seeks to reopen. The failure to establish
good cause requires that we decline to reopen his original appeal. State v. Gumm, 103
Ohio St.3d 162, 2004-Ohio-4755, 814 N.E.2d 861; State v. LaMar, 102 Ohio St.3d 467,
2004-Ohio-3976, 812 N.E.2d 970; State v. Cooey, 73 Ohio St.3d 411, 1995-Ohio-328,
653 N.E.2d 252.
{¶5} Accordingly, we deny the application for reopening.
MELODY J. STEWART, ADMINISTRATIVE JUDGE
SEAN C. GALLAGHER, J., and
TIM McCORMACK, J., CONCUR