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

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The State of Ohio, Appellee, v. Loomer, Appellant.
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[Cite as State v. Loomer (1996), ______Ohio St. 3d_______.]
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Appellate procedure -- Application for reopening appeal from
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judgment and conviction based on claim of ineffective
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assistance of appellate counsel -- Application denied when
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inappropriate -- Judgment complained about is an appeal from
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a motion to dismiss and not an appeal from a judgment of
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conviction and sentence.
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(No. 96-710 -- Submitted July 10, 1996 -- Decided August 21, 1996.)
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Appeal from the Court of Appeals for Cuyahoga County, No. 68103.
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In March 1994, appellant, Gerald Loomer, was indicted for the 1981
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murder of Joyce Spearow. On October 4, 1994, the trial court granted
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Loomer's motion to dismiss on the basis of pre-indictment delay. The court
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of appeals reversed the trial court's dismissal and remanded the case for
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further proceedings. State v. Loomer (Sept. 28, 1995), Cuyahoga App. No.
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68103, unreported, 1995 WL 572009, appeal dismissed, State v. Loomer
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(1996), 75 Ohio St. 3d 1422, 662 N.E.2d 25.
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While this appeal was pending here, Loomer filed an application with
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the court of appeals to reopen his appeal under App. R. 26(B), alleging
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ineffective assistance of appellate counsel. On March 6, 1996, the court of

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appeals denied the application for reopening on the ground, inter alia, that
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App.R. 26(B) (1) applies only to appeals "from the judgment of conviction
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and sentence"; therefore, the application was inappropriate.
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Loomer appeals that denial to this court.
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______________________________
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Stephanie Tubbs Jones, Cuyahoga County Prosecuting Attorney, and
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Lisa Reitz Williamson, Assistant Prosecuting Attorney, for appellee.
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James A. Draper, Cuyahoga County Public Defender, and Donald
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Green, Assistant Public Defender, for appellant.
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______________________________
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Per Curiam. We affirm the judgment of the court of appeals. App.R.
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26(B)(1) clearly provides that a "defendant in a criminal case may apply for
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reopening of the appeal from the judgment of conviction and sentence,
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based on a claim of ineffective assistance of counsel. "(Emphasis added.)"
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Since the judgment that Loomer complains about was an appeal from a
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motion to dismiss, and not an appeal from a judgment of conviction and
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sentence, no basis existed under App.R. 26(B) to reopen the appeal.
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Judgment affirmed.

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