[Cite as State v. Townsend, 2013-Ohio-1653.]




                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA



                              JOURNAL ENTRY AND OPINION
                                       No. 97544


                                     STATE OF OHIO

                                                        PLAINTIFF-APPELLEE

                                                  vs.

                                 ALBERT TOWNSEND
                                                        DEFENDANT-APPELLANT




                                       JUDGMENT:
                                   APPLICATION DENIED


                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-531966
                                   Application for Reopening
                                      Motion No. 460015

               RELEASE DATE:               April 19, 2013
FOR APPELLANT

Albert Townsend, Pro Se
Inmate No. 580-463
Richland Correctional Institution
P.O. Box 8107
Mansfield, OH 44901


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: Mary H. McGrath
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 8th Floor
Cleveland, OH 44113
MELODY J. STEWART, A.J.:

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

26(B).    Through the original application for reopening, filed on November 7, 2012,

Townsend is attempting to reopen the appellate judgment rendered in State v. Townsend,

8th Dist. No. 97544, 2012-Ohio-3452, which affirmed the trial court’s denial of a

postconviction motion. In addition, Townsend, through a “motion to withdraw and to

supplement amend [sic] cover page of this motion filed on November 7, 2012,” is

attempting to reopen the appellate judgment rendered by this court in State v. Townsend,

8th Dist. No. 94473, 2011-Ohio-86, which affirmed his conviction and sentence for the

offenses of aggravated robbery, robbery, and having weapons while under disability.

For the following reasons, we decline to reopen either of the two appeals previously filed

by Townsend.

         {¶2} The appeal in Townsend, 8th Dist. No. 97544, supra, concerned the trial

court’s denial of a postconviction motion.   However, an application for reopening, that

is filed pursuant to App.R. 26(B), can only be employed to reopen an appeal from the

judgment of conviction and sentence based upon a claim of ineffective assistance of

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

 State v. Waver, 8th Dist. No. 97000, 2011-Ohio-6480. Since App.R. 26(B) applies

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

reopen an appeal that dealt with the denial of a postconviction motion.
      {¶3} The appeal, in State v. Townsend, 8th Dist. No. 94473, supra, involved

Townsend’s conviction and sentence for the offenses of aggravated robbery, robbery, and

having weapons while under disability. Townsend, however, filed a prior application

for reopening, in Townsend, 8th Dist. No. 94473, which precludes consideration of the

present application for reopening.      The Supreme Court firmly established that a

defendant-appellant may not file successive applications for reopening.            State v.

Richardson, 74 Ohio St.3d 235, 1996-Ohio-258, 658 N.E.2d 273; State v. Cheren, 73

Ohio St.3d 137, 1995-Ohio-28, 652 N.E.2d 707; State v. Peeples, 73 Ohio St.3d 149,

1995-Ohio-36, 652 N.E.2d 717.

      {¶4} It must also be noted, that even if the present application for reopening was

Townsend’s first application for reopening, the application was filed untimely. The

opinion in State v. Townsend, 8th Dist. No. 94473, supra, was journalized on January 13,

2011. Townsend was required to file a timely application for reopening, within 90 days

of January 13, 2011, or establish good cause for its untimely filing. Townsend did not

file this application for reopening until November 7, 2012, more than 90 days after

journalization of the appellate judgment that he seeks to reopen.   The failure to establish

good cause requires that we decline to reopen his original appeal. State v. Gumm, 103

Ohio St.3d 162, 2004-Ohio-4755, 814 N.E.2d 861; 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.

      {¶5} Accordingly, we deny the application for reopening.
MELODY J. STEWART, ADMINISTRATIVE JUDGE

SEAN C. GALLAGHER, J., and
TIM McCORMACK, J., CONCUR
