Opinion
No. 97873
04-26-2013
STATE OF OHIO PLAINTIFF-APPELLEE v. JOHNATHAN NICHOLSON DEFENDANT-APPELLANT
FOR APPELLANT Johnathan Nicholson, pro se ATTORNEYS FOR RESPONDENT Timothy J. McGinty Cuyahoga County Prosecutor By: Kristen L. Sobieski Assistant County Prosecutor
JOURNAL ENTRY AND OPINION
JUDGMENT:
APPLICATION DENIED
Cuyahoga County Court of Common Pleas
Case No. CR-506069
Application for Reopening
Motion No. 461214
FOR APPELLANT
Johnathan Nicholson, pro se
ATTORNEYS FOR RESPONDENT
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Kristen L. Sobieski
Assistant County Prosecutor
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