[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-Ohio1134 (“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-Ohio1064; 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