State v. Maxwell, Unpublished Decision (9-05-2001)

JOURNAL ENTRY AND OPINION Applicant, Damon Maxwell, has filed an "application requesting for reconsideration and reopening of my appeal denial (sic)" of this court's denial of a motion for delayed appeal. Mr. Maxwell submits this application pursuant to App.R. 26(A) and (B). For the following reasons, we deny Mr. Maxwell's application for reconsideration pursuant to App.R. 26(A) and his application for reopening pursuant to App.R. 26(B).

App.R. 26(A) provides in part that:

* * * be made in writing before the judgment or order of the court has been approved by the court and filed by the court with the clerk for journalization or within ten days after the announcement of the court's decision, whichever is later.

In this matter, the denial of Mr. Maxwell's motion for delayed appeal was announced on May 23, 2001. The application for reconsideration pursuant to App.R. 26(A) was filed on August 27, 2001. Accordingly, Mr. Maxwell's application for reconsideration is untimely and therefore is denied. State v. Seiber (Sep. 2, 1993), Cuyahoga App. No. 63717, unreported, reopening disallowed (Nov. 22, 1994), Motion No. 54034.

App.R. 26(B) provides in part:

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. An application for reopening shall be filed in the court of appeals where the appeal was decided within ninety days from journalization of the appellate judgment unless the applicant shows good cause for filing at a later date.

In the matter, sub judice, there was no appellate judgment announced or journalized which examined Mr. Maxwell's conviction in State v. Maxwell, Cuyahoga Court of Common Pleas Case No. CR-329911. Therefore, this court is prevented from considering Mr. Maxwell's motion to reopen his appeal pursuant to App.R. 26(B). State v. Corbin (Dec. 17, 1999), Cuyahoga App. No. 75949, unreported; State v. Skaggs (May 12, 1999), Cuyahoga App. No. 76201, unreported, reopening disallowed (Sep. 21, 1999), Motion No. 7505. See also State v. Loomer (1996), 76 Ohio St.3d 398, 667 N.E.2d 1209;State v. Halliwell (Jan. 28, 1999), Cuyahoga App. No. 70369, unreported, reopening disallowed (Jan 29, 1999), Motion No. 00187; State v. Fields (Feb. 1, 1996), Cuyahoga App. No. 68906, unreported, reopening disallowed (Sep. 5, 1997), Motion No. 84867; State v. Williams (Oct. 31, 1996), Cuyahoga App. No. 69936. unreported, reopening disallowed (May 7, 1997), Motion No. 82993.

Accordingly, Mr. Maxwell's application is denied.

FRANK D. CELEBREZZE, P.J., AND COLLEEN CONWAY COONEY, J., CONCUR.