[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
