State v. Waver

Full title: STATE OF OHIO PLAINTIFF-APPELLEE v. JAMES L. WAVER DEFENDANT-APPELLANT

Court: Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

Date published: Dec 12, 2011

2011 Ohio 6480 (Ohio Ct. App. 2011)

Opinion

No. 97000

12-12-2011

STATE OF OHIO PLAINTIFF-APPELLEE v. JAMES L. WAVER DEFENDANT-APPELLANT

FOR APPELLANT James L. Waver, pro se ATTORNEYS FOR APPELLEE William D. Mason Cuyahoga County Prosecutor James Price Assistant Prosecuting Attorney

KATHLEEN ANN KEOUGH

JOURNAL ENTRY AND OPINION

JUDGMENT: APPLICATION DENIED

Cuyahoga County Court of Common Pleas

Case No. CR-351032

Application for Reopening

Motion No. 447644

FOR APPELLANT

James L. Waver, pro se

ATTORNEYS FOR APPELLEE

William D. Mason

Cuyahoga County Prosecutor

James Price

Assistant Prosecuting Attorney
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