State v. Smith
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[Cite as State v. Smith, 2017-Ohio-8399.] Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA JOURNAL ENTRY AND OPINION No. 104263 STATE OF OHIO PLAINTIFF-APPELLEE vs. EDWARD A. SMITH DEFENDANT-APPELLANT JUDGMENT: APPLICATION DENIED Cuyahoga County Court of Common Pleas Case No. CR-88-226041-A Application for Reopening Motion No. 508142 RELEASE DATE: November 1, 2017 FOR APPELLANT Edward A. Smith, pro se Inmate No. R135659 Grafton Correctional Institution 2500 South Avon Belden Road Grafton, Ohio 44044 ATTORNEYS FOR APPELLEE Michael C. O’Malley Cuyahoga County Prosecutor By: Brett Hammond Assistant County Prosecutor Justice Center, 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 MARY EILEEN KILBANE, P.J.: {¶1} Edward A. Smith has filed an application for reopening pursuant to App.R. 26(B). Smith is attempting to reopen the delayed appeal rendered in State v. Smith, 8th Dist. Cuyahoga No. 104263, 2017-Ohio-1155, which affirmed the denial of a postsentence motion to withdraw his plea of guilty to the offense of aggravated murder. We decline to grant Smith’s application for reopening. {¶2} App.R. 26(B) provides in part that “[a] defendant in a criminal case may apply for reopening of the appeal from the judgment of conviction and sentence, based on a claim of ineffective assistance of counsel.” (Emphasis added.) Herein, Smith is attempting to reopen the appellate judgment that affirmed the denial of his postsentence motion to withdraw his guilty plea for the offense of aggravated murder. {¶3} An application for reopening, brought pursuant to App.R. 26(B), can only be employed to reopen an appeal taken from the underlying judgment of conviction and sentence imposed by the trial court, 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. See also State v. Pointer, 8th Dist. Cuyahoga No. 85195, 2014-Ohio-2383; State v. Bronczyk, 8th Dist. Cuyahoga No. 98664, 2013-Ohio-3129; State v. Nicholson, 8th Dist. Cuyahoga No. 97873, 2013-Ohio-1786; and State v. Townsend, 8th Dist. Cuyahoga No. 97544, 2013-Ohio-1653. Because App.R. 26(B) applies only to the appeal of a criminal conviction and sentence, it cannot now be employed to reopen the appeal that dealt with the denial of Smith’s motion to withdraw his plea of guilty. State v. Nelson, 8th Dist. Cuyahoga No. 101228, 2015-Ohio-1734; State v. Gaston, 8th Dist. Cuyahoga No. 92242, 2009-Ohio-4715. See also State v. Halliwell, 8th Dist. Cuyahoga No. 70369, 1996 Ohio App. LEXIS 5750 (Dec. 30, 1996), reopening disallowed, motion No. 70369, 1999 Ohio App. LEXIS 285 (Jan. 28, 1999); State v. Shurney, 8th Dist. Cuyahoga No. 64670, 1994 Ohio App. LEXIS 896 (Mar. 10, 1994), reopening disallowed, motion No. 60758 (May 15, 1995). {¶4} Accordingly, the application for reopening is denied. MARY EILEEN KILBANE, PRESIDING JUDGE TIM McCORMACK, J., and MARY J. BOYLE, J., CONCUR
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