[Cite as State v. Townsend, 2026-Ohio-3237.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 116104
v. :
ALBERT TOWNSEND, SR., :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: August 20, 2026
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-17-614508-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Kristen Hatcher, Assistant Prosecuting
Attorney, for appellee.
Albert Townsend, Sr., pro se.
EMANUELLA D. GROVES, J.:
Defendant-appellant Albert Townsend, Sr. (“Townsend”), pro se,
appeals the trial court’s denial of his “motion to vacate set aside sentence” under
R.C. 2953.21(A)(1)(a) and 2953.23(A). Townsend raises the following assignment
of error for this court’s review:
The trial court committed reversible error when it denied [Townsend’s]
motion to vacate his judgment of conviction and sentence where the
court acted without jurisdiction when it tried [Townsend] beyond the
180[-]day limitations period set forth in R.C. 2914.401, thus the
resulting judgment was void ab initio.
We affirm the trial court’s decision finding that Townsend’s “motion” is a successive
and untimely petition for postconviction relief barred by res judicata.
I. Facts and Procedural History
The following facts and procedural history are limited to those
relevant to the disposition of this appeal.
In 2018, a jury found Townsend guilty of five counts of rape, two
counts of kidnapping with sexual motivation specifications, and one count each of
complicity to commit rape, attempted rape, and gross sexual imposition. The rape,
complicity, attempted-rape, and gross-sexual-imposition convictions were
accompanied by findings that Townsend was a sexually violent predator. The trial
court imposed an aggregate prison sentence of 56 years to life and classified
Townsend as a sexual predator.
Townsend filed a direct appeal, raising eight assignments of error.
This court affirmed his convictions for rape, kidnapping, complicity to commit rape,
attempted rape, and gross sexual imposition but reversed his convictions on the
sexually-violent-predator specifications associated with certain counts and
remanded for resentencing. State v. Townsend, 2019-Ohio-1134 (8th Dist.)
(“Townsend I”). Townsend I was affirmed by the Ohio Supreme Court. State v.
Townsend, 2020-Ohio-5586.
Townsend filed a pro se application to reopen Townsend I, claiming
ineffective assistance of counsel based on his appellate attorney’s alleged failures to
raise certain claims in his direct appeal. Through one proposed assignment of error,
Townsend asserted that appellate counsel failed to challenge the trial court’s denial
of his oral and written motions for a speedy trial pursuant to R.C. 2941.401. 1 This
court denied Townsend’s application in State v. Townsend, 2021-Ohio-696 (8th
Dist.).
Townsend also filed numerous pro se postconviction motions,
notices, and petitions at the trial-court level. These filings included petitions for
postconviction relief in September and October 2023 and a “motion to vacate or set
1 R.C. 2941.401 is a speedy-trial statute that applies to prisoners with pending
charges for crimes separate from those for which they are currently imprisoned. The statute provides, in relevant part:
When a person has entered upon a term of imprisonment in a correctional
institution of this state, and when during the continuance of the term of
imprisonment there is pending in this state any untried indictment,
information, or complaint against the prisoner, the prisoner shall be
brought to trial within one hundred eighty days after the prisoner causes to
be delivered to the prosecuting attorney and the appropriate court in which
the matter is pending, written notice of the place of the prisoner’s
imprisonment and a request for a final disposition to be made of the matter,
except that for good cause shown in open court, with the prisoner or the
prisoner’s counsel present, the court may grant any necessary or reasonable
continuance. . . . The written notice and request for final disposition shall
be given or sent by the prisoner to the warden or superintendent having
custody of the prisoner, who shall promptly forward it with the certificate
to the appropriate prosecuting attorney and court by registered or certified
mail, return receipt requested.
R.C. 2941.401 further establishes that “[i]f the action is not brought to trial within the time provided, subject to continuance allowed pursuant to this section, no court any longer has jurisdiction thereof, the indictment, information, or complaint is void, and the court shall enter an order dismissing the action with prejudice.”
aside sentence” in April 2024. In his contested petitions for postconviction relief,
Townsend again argued that his right to a speedy trial was violated under
R.C. 2941.401. Townsend’s “motion to vacate or set aside sentence” was also
premised on this alleged speedy-trial violation.
In his “motion,” Townsend asserted that he sent notice to the prison
warden pursuant to R.C. 2941.401 and was not brought to trial within the statute’s
180-day mandate. Consequently, Townsend claimed that the trial court lacked
“adequate and lawful subject matter jurisdiction” and demanded “immediate
discharge from confinement” and “dismissal with prejudice.” In the “motion’s”
caption, Townsend cited R.C. 2953.21(A)(1)(a) and 2953.23(A) — statutes governing
petitions for postconviction relief. Townsend also requested a hearing under
R.C. 2953.21 in his prayer for relief.
The trial court dismissed Townsend’s petitions for postconviction
relief in April 2024, finding that the petitions were untimely and sought “an oral
hearing and other relief relative to exhibits and evidence and issues whose time for
adjudication (such as expiration of speedy trial) has long since expired.” In January
2026, the trial court denied his “motion to vacate or set aside sentence.” Townsend
filed a notice of appeal in February 2026, challenging the trial court’s denial of his
“motion.”
II. Law and Analysis
In his single assignment of error, Townsend argues that the trial court
erred when it denied his “motion to vacate or set aside sentence.” Townsend claims that the trial court lost jurisdiction when it failed to bring him to trial within
R.C. 2941.401’s 180-day deadline. Consequently, Townsend asserts that his
convictions are void ab initio.
The State counters that Townsend’s “motion” is nothing more than
an untimely and successive petition for postconviction relief that the trial court
lacked jurisdiction to entertain. The State further asserts that Townsend has
repeatedly raised speedy-trial claims and his “motion” is barred by res judicata.
In his reply brief, Townsend reiterates the facts surrounding the
alleged speedy-trial violation and cites case law applying R.C. 2941.401’s
jurisdictional parameters in the context of direct appeals. However, this is not
Townsend’s direct appeal. Nor — as emphasized by the State — is this the first time
that speedy-trial claims under R.C. 2941.401 have been raised.
As an initial matter, we note that Townsend does not dispute the
State’s contention that his “motion to vacate or set aside sentence” is a petition for
postconviction relief in both substance and effect. Moreover, Townsend specifically
cited R.C. 2953.21 and 2953.23 — statutes governing petitions for postconviction
relief — in the “motion’s” caption and prayer for relief. Thus, after reviewing
Townsend’s “motion to vacate or set aside sentence” and the record before us, we
find that the “motion” is properly construed as a petition for postconviction relief.
State v. Reynolds, 79 Ohio St.3d 158 (1997) (holding that a motion styled as a
“motion to correct or vacate sentence” met the definition of a petition for
postconviction relief pursuant to R.C. 2953.21(A)(1) because it was “(1) filed subsequent to [the defendant’s] direct appeal, (2) claimed a denial of constitutional
rights, (3) sought to render the judgment void, and (4) asked for vacation of the
judgment and sentence”); State v. Bridges, 2023-Ohio-1048, ¶ 14 (8th Dist.)
(construing a “motion to vacate a void judgment” as a petition for postconviction
relief).
Having interpreted Townsend’s “motion” as petition for
postconviction relief, we turn to the issues of subject-matter jurisdiction and res
judicata. Whether a trial court possesses subject-matter jurisdiction to entertain an
untimely and/or successive petition for postconviction relief is a question of law,
which appellate courts review de novo. State v. Scott, 2024-Ohio-6211, ¶ 12 (8th
Dist.), citing State v. Apanovitch, 2018-Ohio-4744, ¶ 24.
“A petition for postconviction relief is a collateral civil attack of a
criminal conviction.” Scott at ¶ 7, citing State v. Garrett, 2024-Ohio-1367, ¶ 10-11
(8th Dist.). Since there is no constitutional right to a petition for postconviction
relief, a defendant in such proceedings is entitled only to those rights expressly
granted by the legislature. Id., citing id. “That includes the right to have one’s claim
heard at all . . . .” Apanovitch at ¶ 36. Indeed, ‘“‘‘[t]he most significant restriction
on Ohio’s statutory procedure for postconviction relief is that the doctrine of res
judicata requires that the claim presented in support of the petition represent error
supported by evidence outside the record generated by the direct criminal
proceedings.”’” State v. Brown, 2025-Ohio-274, ¶ 39 (8th Dist.), quoting State v.
Lenard, 2020-Ohio-1502, ¶ 10 (8th Dist.), quoting State v. Monroe, 2005-Ohio5242, ¶ 9 (10th Dist.). Accordingly, any issues that were, or could have been, raised
on direct appeal or in prior petitions for postconviction relief are barred by res
judicata and are, therefore, precluded from review in any subsequent proceedings
or successive petitions. State v. Kennedy, 2024-Ohio-66, ¶ 28-29 (8th Dist.).
Pursuant to R.C. 2953.21(A)(1)(a), “[a]ny person who has been
convicted of a criminal offense . . . and who claims that there was such a denial or
infringement of the person’s rights as to render the judgment void or voidable under
the Ohio Constitution or the Constitution of the United States” may file a petition
stating the grounds for relief relied upon and asking the sentencing court to vacate
or set aside the judgment or sentence or to grant other appropriate relief. When a
direct appeal of a conviction is filed, a petition under R.C. 2953.21(A)(1)(a) must be
filed no later than 365 days after the date that the trial transcript is filed in the court
of appeals. R.C. 2953.21(A)(2).
“[A] court may not entertain a petition filed after the expiration of the
period prescribed in [R.C. 2953.21(A)] or a second petition or successive petitions
for similar relief on behalf of a petitioner unless [R.C. 2953.23(A)(1) or (2)] applies.”
R.C. 2953.23(A). Relevant to this appeal, the R.C. 2953.23(A)(1) exception allows
the trial court to consider an untimely or successive petition if both of the following
conditions are met:
(a) Either the petitioner shows that the petitioner was unavoidably
prevented from discovery of the facts upon, which the petitioner
must rely to present the claim for relief, or, subsequent to the period
prescribed in [R.C. 2953.21(A)(2)] or to the filing of an earlier
petition, the United States Supreme Court recognized a new federal
or state right that applies retroactively to persons in the petitioner’s
situation, and the petition asserts a claim based on that right.
(b) The petitioner shows by clear and convincing evidence that, but for
constitutional error at trial, no reasonable factfinder would have
found the petitioner guilty of the offense of which the petitioner was
convicted or, if the claim challenges a sentence of death that, but for
constitutional error at the sentencing hearing, no reasonable
factfinder would have found the petitioner eligible for the death
sentence.
“[A] petitioner’s failure to satisfy R.C. 2953.23(A) deprives a trial
court of jurisdiction to adjudicate the merits of an untimely or successive
postconviction petition.” Apanovitch, 2018-Ohio-4744, at ¶ 36. A trial court has no
duty to issue findings of fact and conclusions of law when it dismisses untimely or
successive petitions for postconviction relief. State ex rel. George v. Burnside,
2008-Ohio-2702, ¶ 6.
It is undisputed that Townsend’s petition for postconviction relief —
captioned as a “motion to vacate or set aside sentence” — is both untimely and
successive. Townsend’s April 2024 petition challenging his 2018 convictions was
filed well beyond the 365-day deadline established by R.C. 2953.21(A)(2).
Townsend also filed several previous petitions for postconviction relief, which were
denied by the trial court. Nevertheless, Townsend does not (1) assert that the
R.C. 2953.23(A)(1) exception applies in this case or (2) address the conditions
required for the trial court to consider the untimely and successive petition for
postconviction relief. Based the record before us, and absent any argument to the contrary, we find that the trial court was deprived of jurisdiction to adjudicate the
merits of Townsend’s “motion to vacate or set aside sentence.”
Moreover, our review of the record reveals that Townsend could have
— but did not — raise any issues related to R.C. 2941.401 in Townsend I, his direct
appeal. Townsend subsequently claimed, on several occasions, that his right to a
speedy trial was violated. However, those claims were repeatedly rejected at both
the appellate and trial-court levels. Townsend also failed to appeal the trial court’s
dismissal of his September and October 2023 petitions for postconviction relief,
both of which asserted that his right to a speedy trial was violated under
R.C. 2941.401. Therefore, Townsend’s speedy-trial claims under R.C. 2941.401 were
barred by res judicata and precluded from review in a subsequent proceeding and
successive petition. Accordingly, we overrule Townsend’s assignment of error.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
EMANUELLA D. GROVES, JUDGE
EILEEN T. GALLAGHER, P.J., and
EILEEN A. GALLAGHER, J., CONCUR