1994 OHIO 53 - State v. Beard

[This opinion has been published in Ohio Official Reports at

71 Ohio St.3d 89

.]




             THE STATE OF OHIO, APPELLEE, v. BEARD, APPELLANT.
                        [Cite as State v. Beard,

1994-Ohio-53

.]
Appellate procedure—Appeal from denial of late motion for reconsideration
        pursuant to App.R. 26(A) denied, when.
   (No. 94-1436—Submitted October 11, 1994—Decided December 7, 1994.)
       APPEAL from the Court of Appeals for Medina County, No. 2170-M.
                                  __________________
        {¶ 1} According to the appellate court decisions, appellant Brian Beard was
convicted of aggravated robbery, theft, and complicity to commit aggravated
robbery. He appealed, and the court of appeals affirmed the convictions. State v
Beard (Oct. 7, 1992), Medina App. No. 2093-M, unreported. This court overruled
the jurisdictional motion for appeal on February 24, 1993. State v. Beard (1993),

66 Ohio St.3d 1420

607 N.E.2d 843

.
        {¶ 2} On June 18, 1992, appellant filed a motion for new trial, which was
denied by the trial court on September 16, 1992, and that denial was affirmed on
appeal. State v. Beard (May 19, 1993), Medina App. No. 2170-M, unreported.
Thereafter (appellee alleges on or about April 15, 1994) appellant filed either a
motion for delayed reconsideration or a "motion for leave to plead a delayed appeal
to redress a manifest miscarriage of justice/or applicable motion for relief."
Apparently, that motion was denied by the court of appeals on or about May 18,
1994; appellant then filed a notice of appeal to this court, which this court treated
as an appeal as of right of a denial of a motion to reopen the case because of
ineffective assistance of appellate counsel pursuant to App. R. 26(B).            See
Administrative Docket (Aug. 17, 1993),

67 Ohio St.3d 1430

616 N.E.2d 1114

("Appeals to the Supreme Court taken pursuant to State v. Murnahan [1992],

63 Ohio St.3d 60

584 N.E.2d 1204

, shall be treated and docketed like direct appeals.").
                              SUPREME COURT OF OHIO




                               __________________
       Dean Holman, Medina County Prosecuting Attorney, and John J.
Dolatowski, Assistant Prosecuting Attorney, for appellee.
       Brian Beard, pro se.
                               __________________
       Per Curiam.
       {¶ 3} Upon further examination of the pleadings, the court finds that the
"Memorandum in Support of Jurisdiction" attempts to combine an appeal as of right
following the denial of a motion to reopen a case for ineffective assistance of
counsel pursuant to App. R. 26(B) (Proposition 2) with an appeal from the denial
of a late motion for reconsideration pursuant to App. R. 26(A), from which there is
no appeal as of right.      Insofar as appellant's memorandum is in support of
jurisdiction over a claimed appeal as of right and in support of a motion for leave
to appeal a decision under App. R. 26(A), we dismiss the appeal as not involving a
substantial constitutional question and deny leave to appeal.       Insofar as the
memorandum attempts to appeal the question of ineffective assistance of appellate
counsel under App. R. 26(B), the decision of the court of appeals is affirmed.
                                                            Judgment accordingly.
       MOYER, C.J., A.W. SWEENEY, DOUGLAS, WRIGHT, RESNICK, F.E. SWEENEY
and PFEIFER, JJ., concur.
                               __________________




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