State v. Townsend

2011 Ohio 5248

• Court: Ohio Court of Appeals
• Decided: October 11, 2011
• Docket: 94473
• Status: Published

Opinion

[Cite as State v. Townsend, 2011-Ohio-5248.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 94473

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

ALBERT J. TOWNSEND DEFENDANT-APPELLANT

JUDGMENT: APPLICATION DENIED

Cuyahoga County Common Pleas Court Case No. CR-531966 Application for Reopening Motion No. 445585

RELEASE DATE: October 11, 2011 2 FOR APPELLANT

Albert Townsend, Pro Se Inmate No. 580463 Richland Correctional Inst. P.O. Box 8107 Mansfield, Ohio 44901

ATTORNEYS FOR APPELLEE

William D. Mason, Esq. Cuyahoga County Prosecutor By: Mary McGrath, Esq. Assistant County Prosecutor 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113

JAMES J. SWEENEY, J.:

{¶ 1} Albert J. Townsend has filed an application for reopening pursuant to

App.R. 26(B). Townsend is attempting to reopen the appellate judgment, as rendered in

State v. Townsend, Cuyahoga App. No. 94473, 2011-Ohio-86, which affirmed his

conviction and sentence for the offenses of aggravated robbery, robbery, and having

weapons while under disability. We decline to reopen Townsend’s appeal.

{¶ 2} App.R. 26(B)(2)(b) requires that Townsend establish “a showing of good

cause for untimely filing if the application is filed more than 90 days after journalization

of the appellate judgment,” which is subject to reopening. The Supreme Court of Ohio, 3 with regard to the 90-day deadline as provided by App.R. 26(B)(2)(b), has firmly

established that:

{¶ 3} “We now reject [the applicant’s] claim that those excuses gave him good

cause to miss the 90-day deadline in App.R. 26(B). The rule was amended to include

the 90-day deadline more than seven months before [the applicant’s] appeal of right was

decided by the court of appeals in February 1994, so the rule was firmly established then,

just as it is today. Consistent enforcement of the rule’s deadline by the appellate

courts in Ohio protects on the one hand the state’s legitimate interest in the finality

of its judgments and ensures on the other hand that any claims of ineffective

assistance of appellate counsel are promptly examined and resolved.

{¶ 4} “Ohio and other states ‘may erect reasonable procedural requirements

for triggering the right to an adjudication,’ Logan v. Zimmerman Brush Co. (1982),

455 U.S. 422, 437, 102 S.Ct 1148, 71 L.Ed 2d 265, and that is what Ohio has done by

creating a 90-day deadline for the filing of applications to reopen. [The applicant]

could have retained new attorneys after the court of appeals issued its decision in 1994, or

he could have filed the application on his own. What he could not do was ignore the

rule’s filing deadline. * * * The 90-day requirement in the rule is ‘applicable to all

appellants,’ State v. Winstead (1996), 74 Ohio St.3d 277, 278, 658 N.E.2d 722, and

[the applicant] offers no sound reason why he – unlike so many other Ohio criminal

defendants – could not comply with that fundamental aspect of the rule.” (Emphasis 4 added.) State v. Gumm, 103 Ohio St.3d 162, 2004-Ohio-4755, 814 N.E.2d 861, at ¶7.

See, also, 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; State v. Reddick, 72 Ohio

St.3d 88, 1995-Ohio-249, 647 N.E.2d 784.

{¶ 5} Herein, Townsend is attempting to reopen the appellate judgment that was

journalized on January 13, 2011. The application for reopening was not filed until June

24, 2011, more than 90 days after journalization of the appellate judgement in State v.

Townsend, supra. Townsend has failed to establish “a showing of good cause” for the

untimely filing of his application for reopening. State v. Klein (Apr. 8, 1991), Cuyahoga

App. No. 58389, reopening disallowed (Mar. 15, 1994), Motion No. 49260, affirmed

(1994), 69 Ohio St.3d 1481; State v. Trammell (July 24, 1995), Cuyahoga App. No.

67834, reopening disallowed (Apr. 22, 1996), Motion No. 70493; State v. Travis (Apr.

5, 1990), Cuyahoga App. No. 56825, reopening disallowed (Nov. 2, 1994), Motion No.

51073, affirmed (1995), 72 Ohio St.3d 317. See, also, State v. Gaston (Jan. 1, 2007),

Cuyahoga App. No. 79626; State v. Torres, Cuyahoga App. No. 86530, 2007-Ohio-9.

{¶ 6} Accordingly, the application for reopening is denied.

_______________________________________________ JAMES J. SWEENEY, JUDGE

MARY J. BOYLE, P.J., and KATHLEEN ANN KEOUGH, J., CONCUR 5