ORIGINAL

IN THE SUPRFME COURT OF OHIO

12 - 00 10STATE OF OHIO, . CASE NO.

Plaintiff-Appellee, On Appeal from the Cuyahoga CountyCourt of Appeals, Eighth AppellateDistrict, C.A. No. 97000

vs.

JAMES L. WAVER,

Defendant-Appellant.

Appeal Of Application To Reo enAppeal Pursuant To App. R. B

MEMORANDUM IN SUPPORT OF JURISDICTIONOF APPELLANT JAMES L. WAVER

James L. Waver #340516Lake Frie Correctional InstitutionP.O. Box 8000Conneaut, OH 44030-8000

DEFENDANT-APPELLANT, PRO SE

James PriceAssistant Prosecuting AttorneyCuyahoga County, OhioThe Justice Center, 9th Floor1200 Ontario StreetCleveland, OH 44113

COUNSEL FOR APPELLEF., STATE OF OHIO

riL^Rk OF P)OURT

TABLE OF CONTENTS

PAGE

FXPLANATTON OF WHY THIS FELONY CASE INVOLVES A SUBSTANTIALCONSTITUTIONAL QUESTION AND IS ONE OF PUBLIC OR GREATGENERAL INTEREST .................................................... 1

STATE[M OF THE CASE AND FACTS ..................................... 6

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW.......................... . 8

PROPOSITION-0F LAW NO. I : ......................................... 8

Whether court-appointed attorney provides ineffectiveassistance by failing to file a Notice of Appeal orresentencing hearing, which resulted in dismissal of theappeal.

PROPOSITION OF IAW NO. II: ......................................... 10

Whether the Eighth District Court of Appeals erred byfinding that an Application for Reopening pursuant to App.R. 26(B) is limited to direct appeals, where App. R. 26(B)does not provide any limitations, and is clear andunabiguous.

CONCLUSION .......................................................... 12

CERTIFICATE OF SERVICE .............................................. 13

APPENDIX

Journal Entry and Opinion of the Eighth District Court of Appeals... 1Journal Entry of the Eighth District Court of Appeals ............... 5

EXPLANATION OF WEIY THIS FELONY CASE INVOLVES A SUBSTANTIAL CONSTITUTIONALQUESTION AND IS ONE OF PUBLIC OR GREAT GENERAL INTEREST

This case presents two critical issues for review. The first of these,

"whether court-appointed attorney provided ineffective assistance by failing

to file a notice of appeal of resentencing hearing resulting in the dismissal

of the appeal, requires the Court to determine whether Appellant's

constitutional right to effective assistance under the Sixth Amendment was

violated.

It is now well settled State and. Federal law that a convicted defendant's

claim that counsel's assistance was so defective as to require reversal has

two components. First, the defendant must show that counsel's performance was

deficient. This requires showing that counsel was not functioning as the

"counsel" guaranteed the defendant by the Sixth Amendment. Strickland v.

14ashington (1984), 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674.

Second, the defendant must show that there is a reasonable probability that,

but for counsel's unprofessional errors, the result of the proceeding would

have been different. A reasonabl.e probability is a probability sufficient to

overcome confidence in the outcome. Id., 466 U.S. at 694, 104 S.Ct. 2052.

A criminal defendant is entitled to effective assistance of counsel on

appeal as well as at trial. Evitts v. Lucey (1985), 469 U.S. 387, 105 S.Ct.

830, 83 L.Ed.2d 821. Penson v. Ohio (1988), 488 U.S. 75, 109 S.Ct. 346, 102

L.Fd.2d 300. Thus, the Strickland test applies to appellate counsel. Smith v.

Robbins (2000), 528 U.S. 259, 285, 120 S.Ct. 746, 145 L.Ed.2d 756; Burger v.

Kemp (1987), 483 U.S. 776, 107 S.Ct. 3114, 97 L.Ed.2d 638.

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The "deficient performance" prong is easily met here. Following denial of

Appellant's "Omnibus Motion for Appropriate Relief/Motion for New Sentencing

Hearing," Appellant put the trial court on notice that he wished to exercise

his right to appeal the decision, and that he wanted to have counsel appointed

for the appeal. (Transcript of June 20, 2011 Hearing on Appellant's O:nnibus

Motion for Appropriate Relief/Motion for New Sentencing Hearing, at 11.

Hereinafter, "Tr.p. 11"). After finding that Appellant was indigent, the court

determined that Appellant had a right to an attorney for appeal and assigned

Attorney Regis McGann to represent Appellant on appeal. (Tr.p. 12). However,

Mr. McGann failed to file a Notice of Appeal, which resulted in the dismissal

of the appeal.FN1 Subsequently, Appellant filed an Application for Reopening

in the Eighth District Court of Appeals on September 12, 2011 pursuant to App.

R. 26(B). Here, Appellant requested the Court of Appeals to reopen the appeal

based on the ineffective assistance of Mr. McGann for failing to file the

Notice of Appeal.

In addressing the claims presented in the Application, the Eighth

District stated:

The appeal that formed the basis of [Appellant's] application forreopening concerned a post-conviction motion. Specifically,[Appellant's] appeal involved an appeal from the denial of hismotion for a new sentencing hearing. An application for reopeningbrought pursuant to App.R. 26(B) can only be employed to reopen anappeal from the judgment of conviction and sentence, based upon aclaim of ineffective assistance of counsel. (Citations omitted).Because App.R. 26(B) applies only to the direct appeal of a criminalconviction and sentence, it cannot be employed to reopen an appealthat dealt with a denial of a post-conviction motion.

State v. Waver (Dec. 12, 2011), 8th Dist. No. 97000 (emphasis added).

First of all, the Court of Appeals failed to address the merits of the

claim presented in the application: "whether counsel was ineffective for

failing to file a Notice of Appeal, which resulted in the dismissal of the

appeal." Its failure to do so permits counsel to avoid performing one of his

basic ministerial tasks, which seriously affected Appellant's ability to

exercise his constitutional right of redress under the Ohio and United States

Constitutions.

The second issue presented for review, "whether the Eighth District Court

of Appeals erred by finding that an Application for Reopening pursuant to App.

R. 26(B) is limited to direct appeals, presents this Court with an opportunity

to determine whether the findings of the Court of Appeals is contrary to

clearly established State law as determined by this Court and is inconsistent

with legislative intent for filing applications for reopening.

It is the Appellant's contentions that the Eighth District's findings

that "[b]ecause App.R. 26(B) applies only to the direct appeal of a criminal

conviction and sentence, it cannot be employed to reopen an appeal that dealt

with a denial of a post-conviction motion[]" gives the statute a construction

other than that which its words demands, and impermissibly makes an interpre-

tation contrary to the plain and express words of the statute, the meaning of

which the General Assembly must be credited with understanding. See, e.g., In

re Hinton's Estate (1901), 64 Ohio St. 485, 60 N.E. 261.

M. Attomey RFgis Mx',arn acldmaaledged that he vns aware t1-je can tappointsi him forAppellant's appeal, tut claun the trial cast did not journalize tl-e appointrTEnt order tntil July6, 20J.1; a-d that he attepte3 to turnly file the Notice of Appasl on July 1, 2011 Lut uas told1y tl-e Clerk of Coafft that the appointmnt order was not yet sigred aid a Notice cail.d not befile3. (See Affidavit of Regis E. MSa.n attaclrrl to Mr. h12Gann's Nbtion to Reuistate Appealfiled in Eighfll District ai SEptader 6, 2011).

; Mr. MDGarn1's hbtiai to Reicbstate Appeal was daiigl ly entry.

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App. R. 26(B) provides, in pertinent part:

"(1) A defendant in a criminal case may apply for reopening of theappeal from the judgment of conviction and sentence, based on aclaim of ineffective assistance of appellate counsel. ...

"(5) An application for reopening shall be granted if there is agenuine issue as to whether the applicant was deprived of theeffective assistance of counsel on appeal."

The rule is very clear and unambiguous, "an appellate court may not grant

an application for reopening based upon a claim of ineffective assistance of

appellate counsel unless the applicant demonstrates that a genuine issue

exists "as to whether the applicant was deprived of the effective assistance

of counsel on appeal." " App. R. 26(B)(5) (Dnphasis added).

To determine whether an applicant has demonstrated that a genuine issue

exists regarding whether he received ineffective assistance of appellate

counsel, an applicant must present "some evidence": (1) that "counsel's

performance was deficient"; and (2) that the "deficient performance prejudiced

the defense." Strickland, at 689, 104 S.Ct. at 2063. Undisputably, counsel's

failure to file a notice of appeal constitutes deficient performance. See Roe

v. Flores-Ortega (2000), 528 U.S. 470, 478, 120 S.Ct. 1029, 149 L.Ed.2d 985;

Chance v. U.S., 103 F.3d 128 (6th Cir.1996). Prejudice is presumed: "but for

counsel's failure to file the notice of appeal, the appeal would not have been

dismissed."

The rule does not indicate an application can only be filed on "direct

appeal" as held by the Eighth District. In fact, the rule is silent with

respect to whether an application can be filed only on direct appeal, or in

other collateral proceedings challenging the conviction and sentence; it

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certainly does not state that the application is limited only to direct

appeals. Rather, the focus of the rule is on appellate counsel's conduct. See

State v. Perotti (June 22, 1994), 4th Dist. No. 93CA2166. Thus, the Eighth

District's findings are contrary to clearly established State law, and should

be reversed.

Resolution of these issues protects Appellant's constitutional rights to

(1) effective assistance of counsel; and (2) seek redress under both the Ohio

and United States Constitutions. Thus, the case involves a substantial

constitutional question.

The issue presented in this case also affects public interest. Ohio

citizens rely on the General Assembly to enact laws, and rely on the courts to

implement those laws without substituting its own interpretation where the

terms of the laws are clear and unambiguous; ensuring the true meaning of the

law is executed. Where a court impermissibly make an interpretation contrary

to the plain and express words of the law, the court is not acting within the

scope of its duty, and is therefore, not providing the public the services it

made for.

As such, the Court should accept jurisdiction in this case so the issues

can be fully briefed.

STATEMENT OF THE CASE AND FACT

On December 1, 2010, Appellant filed in the Cuyahoga County Court of

Common Pleas an Omnibus Motion for Appropriate Relief/Motion for New

Sentencing Hearing presenting a variety of claims. Appellant was returned to

the court on June 16, 2011 so that the court could conduct a hearing on the

motion. The court advised Appellant of post-release control, but denied the

other claims presented in the motion. At the conclusion of the hearing

Appellant put the court on notice that he wished to appeal the decision. As a

result, the court assigned Attorney Regis E. McGann to represent Appellant on

appeal.

Based on the Affidavit of Mr. McGann filed with counsel's Motion to

Reinstate Appeal filed on September 6, 2011, Mr. McGann acknowledged that he

was aware the court appointed him as counsel for Appellant, but the trial

court did not journalize the appointment order until July 6, 2011. McGann

stated that he attempted to file a timely Notice of Appeal on July 1, 2011,

but was told by the Clerk of Courts that the appointment order was not yet

signed and a Notice of Appeal could not be filed. Mr. McGann states that the

order was signed on July 6, 2011 and he immediately filed the Notice of Appeal

with accompanying documents. (See Affidavit of Attorney Regis E. McGann

attached to McGann's Motion to Reinstate Appeal filed September 6, 2011).

Nevertheless, the Eighth District dismissed the appeal on July 21, 2011 on

grounds that it was not timely filed, and subsequently denied McGann's Motion

to Reinstate Appeal.

Subsequently, Appellant, acting pro se, filed in the Eighth District an

Application for Reopening pursuant to App. R. 26(B) on September 13, 2011

claiming that his appellate attorney provided ineffective assistance for

failing to file a timely notice of appeal, which resulted in the dismissal of

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On December 12, 2011, the Eighth District denied the application,

holding: "[t]he appeal that formed the basis of [Appellant's] application for

reopening concerned a post-conviction motion. Because App.R. 26(B)

applies only to the direct appeal of a criminal conviction and sentence, it

cannot be employed to reopen an appeal that dealt with a denial of a post-

conviction motion." State v. Waver (Dec. 12, 2011), 8th Dist. No. 97000, 1-2.

Appellant contends that the Eighth District's finding is contrary to

clearly established State law as determined by this Court, and is not

consistent with the Legislative's intent for filing an application for

reopening pursuant to App. R. 26(B).

In support of his position on this issue, Appellant presents the

following argiunent.

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW

PROPOSITION OF LAW NO. I:

Whether court-appointed attorney provides ineffective assistance byfailing to file a Notice of Appeal of resentencing hearing, whichresulted in dismissal of the appeal.

It cannot be disputed that the failure of an attorney to file a timely

appeal upon defendant's request constitutes ineffective assitance. Ludwig v.

United States, 162 F.3d 456, 459 (6th Cir.1998).![A] lawyer who disregards

specific instructions from the defendant to file a notice of appeal acts in a

manner that is professionally unreasonable. See Rodriguez v. United States

(1969), 395 U.S. 327, 89 S.Ct. 1715, 23 L.Ed.2d 340; cf. Peguero v. United

States (1999), 526 U.S. 23, 28, 119 S.Ct. 961, 143 L.Ed.2d 18 ("[W]hen counsel

fails to file a requested appeal, a defendant is entitled to [a new] appeal

without showing that his appeal would likely have had merit.") This is so

because a defendant who instructs counsel to initiate an appeal reasonably

relies upon counsel to file the necessary notice. Counsel's failure to do so

cannot be considered a strategic decision; filing a notice of appeal is a

purely ministerial task, and the failure to file reflects inattention to the

defendant's wishes. Roe v. Flores-Ortega (2000), 528 U.S. 470, 478, 120 S.Ct.

1029, 149 L.Ed.2d 985.

In this case, Appellant filed in the Cuyahoga County Court of Common

Pleas ("trial court") an Omnibus Motion for Appropriate Relief/Motion for New

Sentencing Hearing presenting several sentencing issues. The court, however,

only addressed Appellant's post-release control issue, and denied the

remainder of the motion. Consequently, Appellant inquired whether he will be

appointed counsel for this appeal? (Tr.p. 11). The trial court stated:

If you wish to appeal, absolutely you have ... a right toappointed counsel.

J. -4 *

AA- i.T...... Rcnic McCann a^c, VnuY rn11n.CPl. HP i$L'LL. Wavcr, ..^j.. )- -

assigned counsel on your behalf. We'll make contact with him andmake sure he makes contact with you so this can properly beappealed. You have the right to an attorney to represent you and thecosts of that taken care of as an indigent. So we'll take care ofthat and make sure that you have that opportunity within theappropriate appeal time to take action if you choose to do so. Iappreciate you bringing that up. All right.

(Tr.p. 11, 12).

Here, the trial court determined that Appellant had a right to counsel

and appointed Attorney Regis E. McGann to represent Appellant on appeal. Thus,

where court-appointed counsel failed to file a timely Notice of Appeal in an

appeal of right, his performance fell below an objective standard of

reasonableness. Further, counsel's deficiency prejudiced Appellant to

exercising his constitutional right to seek redress under the Ohio and United

States Constitutions.

Accordingly, this Court should grant jurisdiction in this case so the

issue can be fully briefed.

PROPOSITION OF LAW NO. II:

Whether the Eighth District Court of Appeals erred by finding thatan Application for Reopening pursuant to App. R. 26(B) is limited todirect appeals, where App. R. 26(3) does not provide anylimitations, and is clear and unambiguous.

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(1) A defendant in a criminal case may apply for reopening of theappeal from the judgment of conviction and sentence, based on aclaim of ineffective assistance of appellate counsel. An applicationfor reopening shall be filed in the court of appeals where theappeal was decided within ninety days from journalization of theappellate judgment unless the applicant shows good cause for filingat a later time.

(5) An application for reopening shall be granted if there is agenuine issue as to whether the applicant was deprived of theeffective assistance of counsel on appeal.

As attested above, Attorney Regis E. McGann was appointed to represent

Appellant on appeal of the trial court's denial of Appellant's Cmnibus Motion

for Appropriate Relief/Motion for New Sentencing Hearing. Mr. McGann, however,

failed to timely file the Notice of Appeal resulting in the dismissal of the

appeal. Subsequently, Appellant filed an Application for Reopening pursuant to

App. R. 26(B) claiming that his appellate counsel provided ineffective

assistance for failing to timely file a Notice of Appeal. On December 12,

2011, however, the Eighth District Court of Appeals denied the application.

In its decision, the Court of Appeals stated:

The appeal that formed the basis of CAppellant's] application forreopening concerned a post-conviction motion. Specifically,['Appellant's] appeal involved an appeal from the denial of hismotion for a new sentencing hearing. An application for reopeningbrought pursuant to App.R. 26(B) can only be employed to reopen anappeal from the judgment of conviction and sentence, based upon aclaim of ineffective assistance of counsel. (Citations omitted).

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Because App.R. 26(B) applies only to the direct appeal of a criminalconviction and sentence, it cannot be employed to reopen an appealthat dealt with a denial of a post-conviction motion.

Accordingly, the application for reopening is denied.

State v. Waver (Dec. 12, 2011), 8th Dist. No. 97000, at 1-2.

The Court of Appeals' finding in this regards is seriously flawed and

should be reversed and remanded.

Here, the decision of the Court of Appeals erroneously limits an

Application for Reopening pursuant to App. R. 26(B) to direct appeals even

though App. R. 26(Bi) does not express such limitations. In fact, the words

"direct appeal" is not stated in the rule at all. Where the statute on its

face is free from ambiguity, it is the established policy of the courts to

avoid giving it any other construction than that which its words demand. It is

impermissible to make an interpretation contrary to the plain and express

words of the statute, the meaning of which the General Assembly must be

credited with understanding. In re Hinton's Estate (1901), 64 Ohio St. 485, 60

N.E. 261. When the terms of the statute are unambiguous, the judicial inquiry

is complete. Rubin v. United States (1981), 449 U.S. 424, 101 S.Ct. 698, 66

L.Ed.2d 633.

The Eighth District's finding limiting App. R. 26(8+) is not supported by

any rule, statute, or Ohio Supreme Court precedents. In fact, the Eighth

District is the only appellate district in the State that limits App. R. 26(B)

to direct appeals. The rule is completely silent with respect to whether an

appellant may challenge appellate counsel's ineffectiveness in a collateral

attack on the judgment of conviction and sentence.

Based on the foregoing, the Court of Appeals should have granted the

application and given Appellant a new appeal.

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If allowed to stand, the decision of the Eighth District deprives

numerous defendants in the State of Ohio from addressing appellate counsel's

ineffective representation contrary to the General Assembly's intent for

applications for reopening.

As such, this Court should grant jurisdiction in this case so the issue

can be fully briefed.

CONCLUSION

Because this case involves a substantial constitutional question, and is

one of public or great general interest, Appellant respectfully requests the

Court grant jurisdiction in this case so the important issues can be fully

briefed.

Respectfully submitted,

L. Waver ;e Erie Correctional Institution

P.O. Box 8000Conneaut, OH 44030-8000

Defendant-Appellant, pro se

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing Memorandum in Support of

Jurisdiction has been sent by U.S. Mail, first-class postage prepaid, to James

M. Price, Assistant Prosecuting Attorney, The Justice Center, 9th Floor, 1200

Ontario Street, Cleveland, Ohio 44113, on this 28Th day of

December , 2011 ,

Waverdant-Appellant, pro se

APPENDIX

arcE FV-EDJAN ® 3 2912

M^ pf111 811!AF of

Court of ^ppPaN of ®bi.D

EIGHTH APPELLATE DISTRICTCOUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINIONNo. 97000

STATE OF OHIO

PLAINTIFF-APPELLEEvs.

JAMES L. WAVER

DEFENDANT-APPELLANT

JUDGMENT:APPLICATION DENIED

Cuyahoga County Court of Common PleasCase No. CR-351032

Application for ReopeningMotion No. 447644

RELEASE DATE: December 12, 2011

1

FOR APPELLANT

James L. Waver, pro seNo. A-340-516Lake Erie Correctional InstitutionP.O. Box 8000Conneaut, OH 44030-8000

ATTORNEYS FOR APPELLEE

William D. MasonCuyahoga County Prosecutor

James PriceAssistant Prosecuting AttorneyThe Justice Center, 9th Floor1200 Ontario StreetCleveland, OH 44113

2

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KATHLEEN ANN KEOUGH, J.:

James L. Waver has filed an application for reopening pursuant to App.R.

26(B). Waver is attempting to reopen the appellate judgment, as journalized in

State v. Waver (July 21, 2011), Cuyahoga App. No. 97000, which dismissed the

appeal that was initiated with regard to the denial of an "omnibus motion for

appropriate relief/motior, for new sentencing hearisFg" as filed in State U. Waver,

Cuyahoga County Court of Common Pleas Case No. CR-351032. We decline to

reopen Waver's appeal.

The appeal that formed the basis of Waver's application for reopening

concerned a post-conviction motion. Specifically, Waver's appeal involved an

appeal from the denial of his motion for a new sentencing hearing. An

application for reopening brought pursuant to App.R. 26(B) can only be

employed to reopen an appeal from the judgment of conviction and sentence,

based upon a claim of ineffective assistance of counsel. See State U. Loomer, 76

Ohio St.3d 398, 1996-Ohio-59, 667 N.E.2d 1209. See, also, State v. Hal?iwel?

(Dec. 30, 1996), Cuyahoga App. No. 70369, reopening disallowed (Jan. 28, 1999),

Motion No. 300187; State v. White (Jan. 7, 2002), Cuyahoga App. No. 78190,

reopening disallowed (May 13, 2004), Motion No. 357536; State U. Shurney (Mar.

10, 1994), Cuyahoga App. No. 64670, reopening disallowed (May 15, 1995),

Motion No. 260758. Because App.R. 26(B) applies only to the direct appeal of a

3

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criminal conviction and sentence, it cannot be employed to reopen an appeal that

dealt with a denial of a post-conviction motion.

Accordingly, the application for reopening is denied.

MARY J. BOYLE, P.J., andFRANK D. CELEBREZZE, JR., J., CONCUR

4

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Court of Appeals of Ohio, Eighth DistrictCounty of Cuyahoga

Gerald E. Fuerst, Clerk of Courts

STATE OF OHIO

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JAMES L. WAVER

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97000 CP CR-351032

COMMON PLEAS COURT

Appellant MOTION NO. 447644

Date 12/12/11

Journal Entry

Application by Appellant, pro se, for reopening pursuant to App. R. 26(B) is denied. See Journal Entry and

Opinion of same date.

Presiding Judge MARY J. BOYLE Concurs

Judge FRANK D . CELEBREZZE JR ConcursJudge KATHLEEN ANN KEOUGH '

5