2011 Ohio 5248 - State v. Townsend

[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
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