State v. Howe - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

	ROMINGER LEGAL
		Ohio Court Cases and Opinions - Ohio Legal Research
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -RESEARCH

This court case was taken from the web sites of the Ohio Courts. Search our site for more cases - CLICK HERE

LEGAL RESEARCH

COURT REPORTERS

PRIVATE INVESTIGATORS

PROCESS SERVERS

DOCUMENT RETRIEVERS

EXPERT WITNESSES

Find a Private Investigator

Find an Expert Witness

Find a Process Server

Case Law - save on Lexis / WestLaw.

Legal News - Legal Headlines

OPINIONS OF THE SUPREME COURT OF OHIO
The full texts of the opinions of the Supreme Court of
Ohio are being transmitted electronically beginning May 27,
1992, pursuant to a pilot project implemented by Chief Justice
Thomas J. Moyer.
Please call any errors to the attention of the Reporter's
Office of the Supreme Court of Ohio. Attention: Walter S.
Kobalka, Reporter, or Deborah J. Barrett, Administrative
Assistant. Tel.: (614) 466-4961; in Ohio 1-800-826-9010.
Your comments on this pilot project are also welcome.
NOTE: Corrections may be made by the Supreme Court to the
full texts of the opinions after they have been released
electronically to the public. The reader is therefore advised
to check the bound volumes of Ohio St.3d published by West
Publishing Company for the final versions of these opinions.
The advance sheets to Ohio St.3d will also contain the volume
and page numbers where the opinions will be found in the bound
volumes of the Ohio Official Reports.

The State of Ohio, Appellee, v. Howe, Appellant.
[Cite as State v. Howe (1995), Ohio St.3d .]
Appellate procedure -- Application for reopening appeal from
judgment and conviction based on claim of ineffective
assistance of appellate counsel -- Court of appeals
properly dismisses application when it lacks jurisdiction.
(No. 94-455 -- Submitted June 6, 1995 -- Decided August 9,
1995.)
Appeal from the Court of Appeals for Montgomery County,
No. 13969.
Appellant, Weston L. Howe, Jr., was convicted of
aggravated murder, aggravated robbery, aggravated burglary, and
possessing a weapon under disability, and he was sentenced
accordingly. The Court of Appeals for Montgomery County
affirmed the judgment of the trial court. State v. Howe (Sept.
30, 1994), Montgomery App. No. 13969, unreported.
According to the parties, on December 21, 1994, appellant
filed an application to reopen his appeal pursuant to App. R.
26(B), arguing ineffective assistance of counsel. On December
27, 1994, appellant filed a notice of appeal to this court and
a motion for leave to file a delayed appeal. On January 26,
1995, the court of appeals denied appellant's application to
reopen for lack of jurisdiction, pursuant to S. Ct. Prac. R.
(2)(D)(1). State v. Howe (Jan. 26, 1995), Montgomery App. No.
13969, unreported. On February 1, 1995, this court denied
appellant's motion to file a delayed appeal. State v. Howe
(1995), 71 Ohio St.3d 1457, 644 N.E.2d 1030. Appellant, soon
thereafter, filed a motion to reconsider the denial of his
application to reopen in the court of appeals. As the court of
appeals was no longer divested of jurisdiction, appellant's
motion was sustained. State v. Howe (Feb. 22, 1995),
Montgomery App. No. 13969, unreported.
On February 28, 1995, this court accepted appellant's
appeal of the appellate court's January 26 decision, again
divesting the appellate court of jurisdiction. Subsequently,
the court of appeals again denied the application to reopen for
lack of jurisdiction. State v. Howe (Mar. 31, 1995),
Montgomery App. No. 13969, unreported. Appellant now appeals

the January 26 denial of his application to reopen to this
court.

Mathias H. Heck, Montgomery County Prosecuting Attorney,
and Carley J. Ingram, Assistant Prosecuting Attorney, for
appellee.
Weston L. Howe Jr., pro se.

Per Curiam. The sole question before this court is
whether the court of appeals erred in dismissing appellant's
application to reopen for lack of jurisdiction. S.Ct.Prac.R.
II(2)(D)(1) states: "After an appeal is perfected from a court
of appeals to the Supreme Court, the court of appeals is
divested of jurisdiction, except to take action in aid of the
appeal, to rule on an application for reconsideration filed
with the court of appeals pursuant to Rule 26 of the Rules of
Appellate Procedure, or to rule on a motion to certify a
conflict under Article IV, Section 3(B)(4) of the Ohio
Constitution."
An application to reopen under App.R. 26(B) must be filed
within ninety days of journalization of the appellate judgment,
and is an available remedy for a criminal defendant to argue
ineffective assistance of counsel. Appellant, in his
application to reopen, argues ineffective assistance of
appellate counsel. Clearly, appellant filed an application to
reopen pursuant to App.R. 26(B), and did not file an
application for reconsideration under App.R. 26(A). Therefore,
appellant's notice of appeal to this court divested the
appellate court of jurisdiction to rule upon his application to
reopen, and the court of appeals properly dismissed appellant's
application to reopen.
The judgment of the court of appeals is therefore
affirmed.
Judgment affirmed.
Moyer, C.J., Douglas, Wright, Resnick, F.E. Sweeney,
Pfeifer and Cook, JJ., concur.