STATE OF OHIO v. EDWARD A. SMITH

Cleveland, Ohio - Criminal defense attorney represented Edward A. Smith with a application for reopening. Smith is attempting to reopen the appellate judgment rendered in State v. Smith.

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.” (Emphasis added.)

Herein, the appellate judgment subject to the App.R. 26(B) application for

reopening was not concerned with Smith's conviction for the offense of aggravated

murder. The judgment of the trial court, that was subject to appeal, dealt with

resentencing and the denial of a motion to withdraw the plea of guilty entered by

Smith.

This court, in State v. Perotti, 8th Dist. Cuyahoga No. 73743, 2005-

Ohio-2175, held that App.R. 26(B) applies only to the direct appeal of a criminal

conviction; it does not apply to subsequent postconviction proceedings, including

resentencing, motions to vacate sentences, and hearings to determine the validity of

the denial to withdraw a plea of guilty. See also State v. Tharp, 8th Dist. Cuyahoga

No. 104216, 2017-Ohio-2750; State v. Price, 8th Dist. Cuyahoga No. 10328, 2016-

Ohio-711.

Moreover, Smith has failed to demonstrate that there exists a

reasonable probability that, were it not for appellate counsel's alleged errors on

appeal, the results of the appeal would have been different. We find no error with

regard to Smith's four proposed assignments of error. In fact, Smith fails to

demonstrate any prejudice through his four proposed assignments of error and that

the outcome of his direct appeal would have been different. Strickland v.

Washington, 466 U.S. 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley,

42 Ohio St.3d 136, 538 N.E.2d 373 (1989), cert. denied, 497 U.S. 1011, 110 S.Ct.

3258, 111 L.Ed.2d 767 (1990); State v. White, 82 Ohio St.3d 16, 23, 1998-Ohio 363,

693 N.E.2d 772. State v. Price, 8th Dist. Cuyahoga No. 103282, 2016-Ohio-711, ¶

Application denied.