[Cite as State v. McDaniel,
2020-Ohio-3893.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 108978
v. :
ARTHUR McDANIEL, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: APPLICATION DENIED
RELEASED AND JOURNALIZED: July 29, 2020
Cuyahoga County Court of Common Pleas
Case No. CR-18-633120-A
Application for Reopening
Motion No. 540125
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Frank Romeo Zeleznikar, Assistant
Prosecuting Attorney, for appellee.
Arthur McDaniel, pro se.
LARRY A. JONES, SR., J.:
Applicant, Arthur McDaniel, seeks to reopen his appeal in State v.
McDaniel, 8th Dist. Cuyahoga No. 108978 (Jan. 29, 2020). However, the premature
pro se appeal from the denial of McDaniel’s postconviction relief petition was
dismissed for lack of a final, appealable order. McDaniel’s application cannot
succeed. Therefore, it is denied.
In January 2019, McDaniel was convicted of several charges related
to the molestation of his stepdaughters. He appealed his convictions to this court.
State v. McDaniel, 8th Dist. Cuyahoga No. 108282, 2020-Ohio-489. McDaniel filed
a timely petition for postconviction relief while the appeal was pending. The trial
court denied the petition, but did not issue findings of fact and conclusions of law.
On September 9, 2019, McDaniel appealed the denial of his postconviction relief
petition, pro se. This court, on January 29, 2020, dismissed the appeal for lack of a
final, appealable order, citing State v. Hostacky, 8th Dist. Cuyahoga No. 101282,
2015-Ohio-419. After the case was remanded to the trial court, the trial judge issued
findings of fact and conclusions of law. McDaniel then filed a notice of appeal from
that order, and the appeal is still pending at this time. State v. McDaniel, 8th Dist.
Cuyahoga No. 109611.
App.R. 26(B) 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 appellate counsel.” The appeal in the
instant case is not an appeal from the judgment of conviction and sentence. This
appeal stems from the denial of McDaniel’s petition for postconviction relief, which
was not decided on the merits, but dismissed because the appeal was premature.1
1 But see State ex rel. Penland v. Dinkelanker, Slip Opinion No. 2020-Ohio-3774,
where the Supreme Court of Ohio overruled two prior cases and determined that the lack
of findings of fact and conclusions of law is not a defect that deprives an appellate court
Further, McDaniel filed the notice of appeal in McDaniel, 8th Dist.
Cuyahoga No. 108978, pro se, and no appellate counsel was appointed because he
was not entitled to counsel in postconviction proceedings. Goldfuss v. Davidson, 79
Ohio St.3d 116, 126,
679 N.E.2d 1099 (1997); State v. Glover, 8th Dist. Cuyahoga
Nos. 100330 and 100331,
2014-Ohio-3228. A claim of ineffective assistance of
appellate counsel cannot be maintained when no right to counsel exists and none
was provided.
Further, the appeal was not determined on the merits. Therefore,
there is nothing to reopen. McDaniel’s appeal of his postconviction relief petition is
still pending in State v. McDaniel, 8th Dist. Cuyahoga No. 109611. McDaniel cannot
successfully assert a claim of ineffective assistance of appellate counsel in the
present application for reopening.
Finally, the claims made in the application appear to more
appropriately apply to his direct appeal in McDaniel, 8th Dist. Cuyahoga No.
108282, 2020-Ohio-489. McDaniel did not file an application to reopen that appeal.
Application denied.
________________________________
LARRY A. JONES, SR., JUDGE
EILEEN T. GALLAGHER, A.J., and
SEAN C. GALLAGHER, J., CONCUR
of jurisdiction over an appeal from the denial of a timely filed postconviction relief
petition.
