State v. Nicholson

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[Cite as State v. Nicholson, 2013-Ohio-1786.] Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA JOURNAL ENTRY AND OPINION No. 97873 STATE OF OHIO PLAINTIFF-APPELLEE vs. JOHNATHAN NICHOLSON DEFENDANT-APPELLANT JUDGMENT: APPLICATION DENIED Cuyahoga County Court of Common Pleas Case No. CR-506069 Application for Reopening Motion No. 461214 RELEASE DATE: April 26, 2013 FOR APPELLANT Johnathan Nicholson, pro se Inmate No. 561-919 Trumbull Correctional Institution P.O. Box 901 Leavittsburg, OH 44430 ATTORNEYS FOR RESPONDENT Timothy J. McGinty Cuyahoga County Prosecutor By: Kristen L. Sobieski Assistant County Prosecutor Justice Center, 8th Floor 1200 Ontario Street Cleveland, OH 44113 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

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