State v. Waver

2011 Ohio 6480

• Court: Ohio Court of Appeals
• Decided: December 12, 2011
• Docket: 97000
• Status: Published

Opinion

[Cite as State v. Waver, 2011-Ohio-6480.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 97000

STATE OF OHIO PLAINTIFF-APPELLEE vs.

JAMES L. WAVER DEFENDANT-APPELLANT

JUDGMENT: APPLICATION DENIED

Cuyahoga County Court of Common Pleas Case No. CR-351032 Application for Reopening Motion No. 447644

RELEASE DATE: December 12, 2011 FOR APPELLANT

James L. Waver, pro se No. A-340-516 Lake Erie Correctional Institution P.O. Box 8000 Conneaut, OH 44030-8000

ATTORNEYS FOR APPELLEE

William D. Mason Cuyahoga County Prosecutor James Price Assistant Prosecuting Attorney The Justice Center, 9th Floor 1200 Ontario Street Cleveland, OH 44113

KATHLEEN ANN KEOUGH, J.:

{¶ 1} James L. Waver has filed an application for reopening pursuant to App.R.

26(B). Waver is attempting to reopen the appellate judgment, as journalized in State v.

Waver (July 21, 2011), Cuyahoga App. No. 97000, which dismissed the appeal that was

initiated with regard to the denial of an “omnibus motion for appropriate relief/motion for

new sentencing hearing” as filed in State v. Waver, Cuyahoga County Court of Common

Pleas Case No. CR-351032. We decline to reopen Waver’s appeal.

{¶ 2} The appeal that formed the basis of Waver’s application for reopening

concerned a post-conviction motion. Specifically, Waver’s appeal involved an appeal from the denial of his motion for a new sentencing hearing. An application for

reopening brought 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 counsel. See State v. Loomer, 76 Ohio St.3d 398, 1996-Ohio-59, 667

N.E.2d 1209. See, also, State v. Halliwell (Dec. 30, 1996), Cuyahoga App. No. 70369,

reopening disallowed (Jan. 28, 1999), Motion No. 300187; State v. White (Jan. 7, 2002),

Cuyahoga App. No. 78190, reopening disallowed (May 13, 2004), Motion No. 357536;

State v. Shurney (Mar. 10, 1994), Cuyahoga App. No. 64670, reopening disallowed (May

15, 1995), Motion No. 260758. Because 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 a denial of a post-conviction motion.

{¶ 3} Accordingly, the application for reopening is denied.

KATHLEEN ANN KEOUGH, JUDGE

MARY J. BOYLE, P.J., and FRANK D. CELEBREZZE, JR., J., CONCUR