State v. Townsend , 2011 Ohio 5248 ( 2011 )

[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
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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,
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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
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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
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