State v. Nicholson

2013 Ohio 1786

Opinion

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 97873

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

JOHNATHAN NICHOLSON

DEFENDANT-APPELLANT

JUDGMENT:

APPLICATION DENIED

Cuyahoga County Court of Common Pleas Case No. CR-506069

Application for Reopening Motion No. 461214

RELEASE DATE: April 26, 2013

FOR APPELLANT

Johnathan Nicholson, pro se Inmate No. 561-919 Trumbull Correctional Institution P.O. Box 901 Leavittsburg, OH 44430

ATTORNEYS FOR RESPONDENT

Timothy J. McGinty Cuyahoga County Prosecutor

By: Kristen L. Sobieski Assistant County Prosecutor Justice Center, 8th Floor 1200 Ontario Street Cleveland, OH 44113

TIM McCORMACK, J.:

{¶1} Jonathan Nicholson has filed a timely application for reopening pursuant to App.R. 26(B). Nicholson is attempting to reopen the appellate judgment that was rendered in State v. Nicholson, 8th Dist. No. 97873, 2012-Ohio-4591, which affirmed the trial court’s denial of a postconviction motion to withdraw his plea of guilty to four counts of aggravated murder, four counts of aggravated robbery, and one count of attempted aggravated robbery. We decline to reopen Nicholson’s appeal.

{¶2} The appeal in Nicholson 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} Accordingly, the application for reopening is denied.

TIM McCORMACK, JUDGE

MARY J. BOYLE, P.J., and KENNETH A. ROCCO, J., CONCUR