State v. Rodriguez

2013 Ohio 95

• Court: Ohio Court of Appeals
• Decided: January 16, 2013
• Docket: 78696
• Status: Published

Opinion

[Cite as State v. Rodriguez, 2013-Ohio-95.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 78696

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

ANTONIO RODRIGUEZ DEFENDANT-APPELLANT

JUDGMENT: APPLICATION DENIED

Cuyahoga County Common Pleas Court Case No. CR-379959 Application for Reopening Motion No. 461298

RELEASE DATE: January 16, 2013 APPELLANT

Antonio Rodriguez, Pro Se No. 30226-160 Federal Correctional Institution-Gilmer P.O. Box 6000 Glenville, West Virginia 26351

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor By: Diane Smilanick Assistant County Prosecutor 1200 Ontario Street Cleveland, Ohio 44113 KATHLEEN ANN KEOUGH, J.:

{¶1} On December 31, 2012, the applicant, Antonio Rodriquez, pursuant to

App.R. 26(B), applied to reopen this court’s judgment in State v. Rodriquez, 8th Dist. No.

78696 (Dec. 4, 2000), in which this court dismissed Rodriquez’s appeal for failure to file

the record. Rodriquez now argues that this appeal should be reinstated because his

counsel abandoned him and prevented Rodriquez from having his day in court. On

January 8, 2013, the state of Ohio filed its brief in opposition. For the following

reasons, this court denies the application to reopen.

{¶2} In State v. Rodriquez, Cuyahoga C.P. No. CR-379959, Rodriquez was

charged with one count each of felonious assault and aggravated robbery, both with one-

and three-year firearm specifications, as well as one count of having a weapon under

disability. Pursuant to a plea bargain, Rodriquez pleaded guilty to felonious assault; the

state nolled the other charges, including all of the firearm specifications, and dismissed a

separate theft case; and the judge sentenced Rodriquez to an agreed two-year sentence.

Between the time of the guilty plea hearing and the sentencing, Rodriquez moved to

withdraw the plea. After a hearing, the trial judge, on October 10, 2000, denied that

motion. Rodriquez’s attorney timely appealed that denial on October 13, 2000, and

asked for a transcript. However, when no transcript was filed, this court dismissed the

appeal.

{¶3} 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 December

31, 2012 application was filed approximately 12 years after this court dismissed the case.

Thus, it is untimely on its face. To show good cause, Rodriquez argues that his

appellate counsel abandoned him, costing him his day in court and that he has very

limited use of English. However, these excuses do not explain the lapse of 12 years.

In State v. Davis, 86 Ohio St.3d 212, 214, 1999-Ohio-160, 714 N.E.2d 384, the Supreme

Court of Ohio addressed a similar long lapse of time in filing an App.R. 26(B) application

and ruled:

Even if we were to find good cause of earlier failures to file, any such good cause “has long since evaporated. Good cause can excuse the lack of a filing only while it exists, not for an indefinite period.” State v. Fox, 83 Ohio St.3d 514, 516, 1998-Ohio-517, 700 N.E.2d 1253, 1254.

{¶4} Moreover, an App.R. 26(B) application to reopen can only be employed to

reopen an appeal from the judgment of conviction and sentence. It does not apply to

collateral remedies such as a motion to withdraw a guilty plea or a postconviction relief

petition. State v. Loomer, 76 Ohio St.3d 398, 1996-Ohio-59, 667 N.E.2d 1209; and

State v. Alford, 8th Dist. No. 95946, 2011-Ohio-6259. Because App.R. 26(B) applies

only to the direct appeal of a criminal conviction and sentence, it cannot be employed to

reopen the appeal of Rodriquez’s denial of a motion to withdraw his guilty plea.

{¶5} Accordingly, this court denies the application to reopen. KATHLEEN ANN KEOUGH, JUDGE

FRANK D. CELEBREZZE, JR., P.J., and EILEEN A. GALLAGHER, J., CONCUR