State v. Nicholson

[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