State v. Waver

2011 Ohio 6480

Opinion

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