[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