State v. Townsend

[Cite as State v. Townsend, 2022-Ohio-4398.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 110525
v. :
ALBERT TOWNSEND, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: APPLICATION DENIED
RELEASED AND JOURNALIZED: December 5, 2022
Cuyahoga County Court of Common Pleas
Case No. CR-17-614508-A
Application for Reopening
Motion No. 556467
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Melissa Riley, Assistant Prosecuting
Attorney, for appellee.
Albert Townsend, pro se.
LISA B. FORBES, J.:
Albert Townsend, acting pro se, filed a timely App.R. 26(B)
application for reopening, attempting to reopen the appellate judgment rendered on
May 10, 2022, in State v. Townsend, 8th Dist. Cuyahoga No. 110525, 2022-Ohio-
692 (“Townsend II”). For the reasons explained in this opinion, we decline to
reopen Townsend’s appeal.
I. Procedural History
In State v. Townsend, 8th Dist. Cuyahoga No. 107186, 2019-Ohio-
1134 (“Townsend I”), this court affirmed Townsend’s convictions for rape,
kidnapping with sexual motivation specifications, complicity to commit rape,
attempted rape, and gross sexual imposition, but vacated the sexually violent
predator specifications on Counts 1 (rape), 2 (rape), 3 (complicity), 7 (kidnapping),
9 (rape), 10 (rape), 11 (attempted rape), and 12 (kidnapping) and remanded for
resentencing.
On August 10, 2020, the trial court resentenced Townsend. A timely
appeal was filed with this court. In Townsend II, this court affirmed the trial court’s
resentencing, but remanded the matter for the limited purpose of requiring the trial
court to reflect its findings supporting the imposition of consecutive sentences in its
resentencing journal entry. On June 2, 2022, Townsend filed a timely App.R. 26(B)
application for reopening.
II. Standard of Review Applicable to App.R. 26(B) Application for
Reopening
An application for reopening shall be granted if there exists a genuine
issue as to whether an applicant was deprived of the effective assistance of appellate
counsel. See App.R. 26(B)(5). To establish a claim of ineffective assistance of
appellate counsel, Townsend is required to establish that the performance of his
appellate counsel was deficient, and the deficiency resulted in prejudice. See
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984);
State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), cert. denied, 497 U.S.
1011, 110 S.Ct. 3258, 111 L.Ed.2d 768 (1990).
In Strickland, the United States Supreme Court held that a court’s
scrutiny of an attorney’s work must be highly deferential. The court further stated
that it “is all too tempting for a defendant to second-guess counsel’s assistance after
conviction” and that it would be too easy for a court to conclude that a specific act or
omission was deficient, especially when examining the matter in hindsight. Id. at
689. Thus, “a court must indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance; that is, the defendant
must overcome the presumption that, under the circumstances, the challenged
action ‘might be considered sound trial strategy.’” Id.
Moreover, to demonstrate that the deficient conduct resulted in
prejudice, the petitioner must show that but for the deficient conduct, there exists a
reasonable probability that the results of their appeal would have been different.
State v. May, 8th Dist. Cuyahoga No. 97354, 2012-Ohio-5504, ¶ 5. Reasonable
probability in the context of an application for reopening is defined as a “probability
sufficient to undermine confidence in the outcome” of the appeal. Id.III. Proposed Assignments of Error in General
A. Failure to Argue Proposed Assignments of Error
Townsend raises 26 proposed assignments of error in support of his
application for reopening. Initially, we find that through his 26 proposed
assignments of error, Townsend has failed to present any viable argument that
establishes appellate counsel’s performance was deficient and has failed to establish
that he was prejudiced. State v. Gaughan, 8th Dist. Cuyahoga No. 90523, 2009-
Ohio-2702; see also State v. Littlejohn, 8th Dist. Cuyahoga No. 95380, 2012-Ohio-
1064; State v. Warner, 8th Dist. Cuyahoga No. 95750, 2012-Ohio-256; State v.
Freeman, 8th Dist. Cuyahoga No. 95511, 2011-Ohio-5151; State v. Price, 8th Dist.
Cuyahoga No. 90308, 2009-Ohio-3503. Merely reciting assignments of error,
without demonstrating prejudice and presenting legal argument and analysis, is not
sufficient to support an App.R. 26(B) application for reopening. Gaughan.
B. Collateral Attack on Original Appellate Opinion
In addition, 23 of the 26 proposed assignments of error raised in
support of the application for reopening are barred from consideration in the
present application for reopening because they constitute a collateral attack on the
appellate decision that affirmed Townsend’s convictions in Townsend I.
The law of the case doctrine now bars [applicants] other arguments.
This “doctrine provides that the decision of a reviewing court in a case
remains the law of the case on the legal questions involved for all
subsequent proceedings in the case at both the trial and reviewing
levels.” Nolan v. Nolan (1984), 11 Ohio St.3d 1, 3, 11 Ohio B. 1, 462
N.E.2d 410. * * *
In the present case, when this court affirmed the convictions in the First
Appeal, the propriety of those convictions became the law of the case,
and subsequent arguments seeking to overturn them became barred.
Thus, in the Second Appeal, only arguments relating to the
resentencing were proper.
State v. Harrison, 8th Dist. Cuyahoga No. 88957, 2008-Ohio-921, ¶ 8-9.
In State v. Dowell, 8th Dist. Cuyahoga No. 88864, 2008-Ohio-3447,
this court reiterated the reasoning espoused in Harrison and held:
Similarly, in this action, only assignments of error which challenge
[applicant’s] resentencing would be appropriate for consideration of an
application for reopening filed after Dowell II. Yet, [applicant’s]
proposed assignment of error challenges his conviction. Clearly, the
proposed assignment of error exceeds the scope of what could have
been considered on the merits in Dowell II. As a consequence, we must
conclude that [applicant] has not met his burden to demonstrate: that
his counsel in Dowell II was deficient; and that [applicant] was
prejudiced by the absence of the proposed assignment of error.
Id. at ¶ 8.
Here, the appeal subject to the application for reopening solely
concerned the resentencing affirmed in Townsend II. Twenty-three of Townsend’s
proposed assignments of error, specifically proposed assignments of error Nos. 2
through 13 and Nos. 15 through 25, challenge Townsend I, the direct appeal that
originally affirmed his conviction for the offenses of rape, kidnapping, complicity to
commit rape, attempted rape, and gross sexual imposition. Thus, we are barred by
the doctrine of the law-of-the-case from addressing proposed assignments of error
Nos. 2 through 13 and Nos. 15 through 25. Townsend has failed to establish the
claim of ineffective assistance of appellate counsel as it relates to those proposed
assignments of error. See State v. Bolton, 8th Dist. Cuyahoga No. 103628, 2017-
Ohio-7062.
IV. Proposed Assignments of Error 1, 14, and 26
We next address Townsend’s 1st, 14th, and 26th assignments of error
despite his failure to support them with legal authority in his application for
reopening.
A. Proposed Assignment of Error 1
Townsend’s 1st proposed assignment of error is:
Ineffective assistance of appellate counsel failure for raising errors
which he did not support argument the proper method through the
existence supported by transcript nos.
Townsend apparently argues that appellate counsel failed to
reference the transcript and cite to authorities when arguing an assignment of error
addressed in Townsend II, as mandated by App.R. 16(A)(7). A review of the
appellate brief, filed by counsel in Townsend II, demonstrates that the sole
assignment of error dealt with the allegation that the trial court improperly imposed
consecutive sentences following remand. Appellate counsel’s brief referenced the
transcript and also supported the assignment of error with pertinent citations to
case law, statutes, and other authorities as required by App.R. 16(A)(7). Compare
State v. Halfhill, 4th Dist. Gallia No. 21CA4, 2022-Ohio-3242 (providing that App.R.
16(A)(7) requires an appellant to include in his or her brief, under the headings and
in the order indicated, an argument stating its contentions in support of each
assignment of error and the reasons in support of the contentions, along with
citations to authorities, statutes, and parts of the record on which the appellant
relies); State v. Caver, 8th Dist. Cuyahoga Nos. 90945 and 90946, 2008-Ohio-6155.
Townsend has failed to demonstrate that his appellate counsel’s performance was
deficient or that he was prejudiced through the conduct of his appellate counsel on
appeal.
B. Proposed Assignments of Error 14 and 26
Having a common basis in law and fact, we shall simultaneously
consider Townsend’s 14th and 26th proposed assignments of error. Townsend’s
14th proposed assignment of error is:
Ineffective assistance of appellate counsel * * * for giving erroneous
legal advice for appellant to waive his right to allocution statement
when appellant stated on the record he waived it because of advisement
of counsel. See Lafer v. Cooper 566 U.S. 156 NO-10-209.
Townsend’s 26th proposed assignment of error is:
Ineffective assistance of resentencing counsel * * * for giving erroneous
legal advice for defendant-appellant to his right to allocution statement
when appellant stated on the record he waived his allocution statement
by advice of counsel.
Townsend, through his 14th and 26th proposed assignments of error,
argues that his appellate counsel failed to raise on appeal the issue of “erroneous
legal advice” provided by trial counsel with regard to the right of allocution during
resentencing. However, upon review we find that Townsend was provided with the
right to allocution.
A defendant has a right to remain silent at sentencing even after a guilty
plea, and a court cannot use that silence at sentencing or at trial against
him. Mitchell v. United States, 526 U.S. 314, 321, 119 S.Ct. 1307, 143
L.Ed.2d 424 (1999). Penalizing a defendant for exercising their
constitutional rights is unconstitutional. North Carolina v. Pearce,
395 U.S. 711, 724, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). In affirming a
defendant’s right to remain silent, the Supreme Court in Mitchell noted
that “[w]hether silence bears upon the determination of a lack of
remorse, or upon acceptance of responsibility [for sentencing
purposes] is a separate question.” Mitchell at 330. Likewise, Ohio
courts have consistently held that a defendant’s silence at sentencing
may not be used against him in fashioning a sentence. State v. Hodges,
8th Dist. Cuyahoga No. 101145, 2014-Ohio-4690, ¶ 11, citing State v.
Betts, 8th Dist. Cuyahoga No. 88607, 2007-Ohio-5533, ¶ 29.
State v. Brunson, 8th Dist. Cuyahoga No. 107683, 2020-Ohio-5078, ¶ 73.
Townsend possessed the constitutional right to remain silent during
sentencing. We see no possible prejudice that resulted from Townsend following
the advice of his trial counsel to remain silent during sentencing. Finally, Townsend
has failed to demonstrate with citations to the transcript of his resentencing hearing
that his silence was used against him, and our independent review of the transcript
does not support a claim of prejudice as a result of Townsend’s silence. Thus, we
find that Townsend has failed to establish any appellate deficiency through his 14th
and 26th proposed assignments of error.
V. Procedural Defect — Application Exceeds Page Limitation
In addition, Townsend’s application for reopening is procedurally
defective because it exceeds the ten-page limitation established by App.R. 26(B)(4).
Townsend’s application for reopening consists of 16 pages, which does not include
his sworn affidavit and various exhibits. Exceeding the ten-page limitation of
App.R. 26(B)(4) constitutes a valid basis for the denial of Townsend’s application
for reopening. State v. Murawski, 8th Dist. Cuyahoga No. 70854, 2002-Ohio-3631;
State v. Caldwell, 8th Dist. Cuyahoga No. 44360, 2002-Ohio-2751; State v.
Graham, 8th Dist. Cuyahoga No. 33350, 1975 Ohio App. LEXIS 6710 (June 12,
1975), reopening disallowed (July 21, 1994), Motion No. 252743; State v. Schmidt
8th Dist. Cuyahoga No. 57738, 1991 Ohio App. LEXIS 5787 (Dec. 5, 1991), reopening
disallowed (Aug. 10, 1994), Motion No. 142174; and State v. Peeples 8th Dist.
Cuyahoga No. 54708, 1988 Ohio App. LEXIS 5294 (Dec. 22, 1988), reopening
disallowed (Aug. 24, 1994), Motion No. 254080, aff’d, 71 Ohio St.3d 349, 643
N.E.2d 1112 (1994).
For the foregoing reasons, Townsend’s application for reopening is
denied.
LISA B. FORBES, JUDGE
ANITA LASTER MAYS, P.J., and
EILEEN T. GALLAGHER, J., CONCUR