[Cite as State v. Rodriguez, 2013-Ohio-95.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 78696


                                       STATE OF OHIO
                                                   PLAINTIFF-APPELLEE

                                                       vs.

                                ANTONIO RODRIGUEZ
                                                   DEFENDANT-APPELLANT



                                        JUDGMENT:
                                    APPLICATION DENIED


                               Cuyahoga County Common Pleas Court
                                      Case No. CR-379959
                                    Application for Reopening
                                       Motion No. 461298



        RELEASE DATE:                   January 16, 2013
APPELLANT

Antonio Rodriguez, Pro Se
No. 30226-160
Federal Correctional Institution-Gilmer
P.O. Box 6000
Glenville, West Virginia 26351

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
By: Diane Smilanick
Assistant County Prosecutor
1200 Ontario Street
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, J.:

       {¶1} On December 31, 2012, the applicant, Antonio Rodriquez, pursuant to

App.R. 26(B), applied to reopen this court’s judgment in State v. Rodriquez, 8th Dist. No.

78696 (Dec. 4, 2000), in which this court dismissed Rodriquez’s appeal for failure to file

the record.     Rodriquez now argues that this appeal should be reinstated because his

counsel abandoned him and prevented Rodriquez from having his day in court. On

January 8, 2013, the state of Ohio filed its brief in opposition.       For the following

reasons, this court denies the application to reopen.

       {¶2} In State v. Rodriquez, Cuyahoga C.P. No. CR-379959, Rodriquez was

charged with one count each of felonious assault and aggravated robbery, both with one-

and three-year firearm specifications, as well as one count of having a weapon under

disability. Pursuant to a plea bargain, Rodriquez pleaded guilty to felonious assault; the

state nolled the other charges, including all of the firearm specifications, and dismissed a

separate theft case; and the judge sentenced Rodriquez to an agreed two-year sentence.

Between the time of the guilty plea hearing and the sentencing, Rodriquez moved to

withdraw the plea.     After a hearing, the trial judge, on October 10, 2000, denied that

motion.       Rodriquez’s attorney timely appealed that denial on October 13, 2000, and

asked for a transcript.   However, when no transcript was filed, this court dismissed the

appeal.

       {¶3} App.R. 26(B)(1) and (2)(b) require applications claiming ineffective
assistance of appellate counsel to be filed within 90 days from journalization of the

decision unless the applicant shows good cause for filing at a later time.   The December

31, 2012 application was filed approximately 12 years after this court dismissed the case.

 Thus, it is untimely on its face.     To show good cause, Rodriquez argues that his

appellate counsel abandoned him, costing him his day in court and that he has very

limited use of English. However, these excuses do not explain the lapse of 12 years.

In State v. Davis, 86 Ohio St.3d 212, 214, 1999-Ohio-160, 714 N.E.2d 384, the Supreme

Court of Ohio addressed a similar long lapse of time in filing an App.R. 26(B) application

and ruled:

       Even if we were to find good cause of earlier failures to file, any such good
       cause “has long since evaporated. Good cause can excuse the lack of a
       filing only while it exists, not for an indefinite period.” State v. Fox, 83
       Ohio St.3d 514, 516, 1998-Ohio-517, 700 N.E.2d 1253, 1254.

       {¶4} Moreover, an App.R. 26(B) application to reopen can only be employed to

reopen an appeal from the judgment of conviction and sentence. It does not apply to

collateral remedies such as a motion to withdraw a guilty plea or a postconviction relief

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

State v. Alford, 8th Dist. No. 95946, 2011-Ohio-6259. Because App.R. 26(B) applies

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

reopen the appeal of Rodriquez’s denial of a motion to withdraw his guilty plea.

       {¶5} Accordingly, this court denies the application to reopen.
KATHLEEN ANN KEOUGH, JUDGE


FRANK D. CELEBREZZE, JR., P.J., and
EILEEN A. GALLAGHER, J., CONCUR
