Appellate procedure—Application for reopening appeal from judgment and conviction based on claim of ineffective assistance of appellate counsel—Application denied when inappropriate—Judgment complained about is an appeal from a motion to dismiss and not an appeal from a judgment of conviction and sentence.
.]
THE STATE OF OHIO, APPELLEE, v. LOOMER, APPELLANT.
[Cite as State v. Loomer,
1996-Ohio-59
.]
Appellate procedure—Application for reopening appeal from judgment and
conviction based on claim of ineffective assistance of appellate counsel—
Application denied when inappropriate—Judgment complained about is
an appeal from a motion to dismiss and not an appeal from a judgment of
conviction and sentence.
(No. 96-710—Submitted July 10, 1996—Decided August 21, 1996.)
APPEAL from the Court of Appeals for Cuyahoga County, No. 68103.
__________________
{¶ 1} In March 1994, appellant, Gerald Loomer, was indicted for the 1981
murder of Joyce Spearow. On October 4, 1994, the trial court granted Loomer’s
motion to dismiss on the basis of pre-indictment delay. The court of appeals
reversed the trial court’s dismissal and remanded the case for further proceedings.
State v. Loomer (Sept. 28, 1995), Cuyahoga App. No. 68103, unreported,
.
{¶ 2} While this appeal was pending here, Loomer filed an application with
the court of appeals to reopen his appeal under App. R. 26(B), alleging ineffective
assistance of appellate counsel. On March 6, 1996, the court of appeals denied the
application for reopening on the ground, inter alia, that App.R. 26(B) (1) applies
only to appeals “from the judgment of conviction and sentence”; therefore, the
application was inappropriate.
{¶ 3} Loomer appeals that denial to this court.
__________________
SUPREME COURT OF OHIO
Stephanie Tubbs Jones, Cuyahoga County Prosecuting Attorney, and Lisa
Reitz Williamson, Assistant Prosecuting Attorney, for appellee.
James A. Draper, Cuyahoga County Public Defender, and Donald Green,
Assistant Public Defender, for appellant.
__________________
Per Curiam.
{¶ 4} We affirm the judgment of the court of appeals. App.R. 26(B)(1)
clearly provides 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.)” Since the judgment that
Loomer complains about was an appeal from a motion to dismiss, and not an appeal
from a judgment of conviction and sentence, no basis existed under App.R. 26(B)
to reopen the appeal.
Judgment affirmed.
MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
STRATTON, JJ., concur.
__________________
2
