[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