Ohio App. R. 26 (2026)

(A) Application for reconsideration and en banc consideration

A party may seek reconsideration of a judgment, decision, or order through an application for reconsideration, an application for en banc consideration, or both. Unless a local rule provides otherwise, a party seeking both forms of review must file the applications as a single document. An application for reconsideration that includes a request for en banc consideration must plainly state that information on the cover or first page and also in the title of the document.

The court will grant a motion to extend the time to file an application for either reconsideration or en banc consideration only for the most compelling reasons. If an untimely application is not accompanied by a motion to extend the filing time, the court will not consider the application.

(1) Reconsideration

(a) Unless the time is shortened or extended by order or local rule, any application for reconsideration must be filed no later than 15 days after the court’s judgment is filed by the clerk of the court of appeals (or if the panel later amends its decision, whether on reconsideration or otherwise, within 15 days after the amended decision is filed).

The application must explain in detail each point of law or fact that the applicant believes the court has overlooked or misconstrued and must present any argument in support of reconsideration. The application is not a vehicle to reargue issues previously presented.

Unless the court or a local rule allow otherwise, the application (including any application requesting both reconsideration and consideration en banc) must not exceed 15 pages.

(b) Any party’s response to the application must be filed within 15 days after the application is filed. The page limit in division (A)(1)(a) of this rule applies to any response.

No other briefing from the parties is permitted except at the request of the court.

Copies of the application and any response to it must be served in the manner prescribed for the service and filing of briefs in the initial action.

Oral argument on the question of whether the court should grant the application is not permitted except at the request of the court.

(c) The application for reconsideration will be considered by the panel that issued the original decision.

(2) En banc consideration

(a) Upon a determination that two or more decisions of the court on which they sit are in conflict, a majority of the en banc court may order that an appeal or other proceeding be considered en banc. The en banc court is composed of all judges of the appellate district who have not recused themselves or otherwise been disqualified from the case, and all members of the en banc court must vote whenever the court considers whether to rehear a case en banc.

Consideration en banc is not favored and will not be ordered unless necessary to secure or maintain uniformity of decisions within the district on an issue that is dispositive in the case in which the application is filed.

(b) The en banc court may order en banc consideration even if no request is filed. Any order designating a case for en banc consideration that is issued by the court in the absence of a request from one or more parties must be entered no later than 10 days after judgement is issued (or if the panel later amends its decision, whether on reconsideration or otherwise, within 10 days after the amended decision is filed).

(c) A party may also file an application for en banc consideration. Unless the time is shortened or extended by order or local rule, any application for en banc consideration must be filed no later than 15 days after the court’s judgment is filed by the clerk of the court of appeals (or if the panel later amends its decision, whether on reconsideration or otherwise, within 15 days after the amended decision is filed).

The application must explain how the panel’s decision conflicts with a prior panel’s decision on a dispositive issue and why consideration by the court en banc is necessary to secure and maintain uniformity of the court’s decisions.

The timing, page-length, and service requirements in division (A)(1) of this rule apply to applications for en banc consideration.

(d) A decision to grant en banc consideration vacates the previous opinion and judgment of the court and restores the case on the docket as an active appeal. If a majority of the judges of the appellate district is unable to concur in a decision on the merits of the case, the court may choose to reissue the decision of the original panel as the judgment of the court.

(e) Other procedures governing the initiation, filing, briefing, rehearing, reconsideration, and determination of en banc proceedings may be prescribed by local rule or as otherwise ordered by the court.

(B) Application for reopening

(1) A defendant in a criminal case or a delinquent child in a juvenile case may apply for reopening of the appeal from the judgment of conviction and sentence or from a judgment of adjudication or disposition based on a claim of ineffective assistance of appellate counsel. Any application for reopening must be filed in the court of appeals where the appeal was decided within 90 days after the court’s judgment is filed by the clerk of the court of appeals unless the applicant shows good cause for filing the application at a later time.

(2) An application for reopening must contain all of the following:

(a) The appellate case number in which reopening is sought and the trial court case number or numbers from which the appeal was taken;

(b) A showing of good cause for untimely filing if the application is filed after the 90-day deadline set up by division (B)(1) of this rule;

(c) One or more assignments of error or arguments in support of assignments of error that previously were not considered on the merits in the case by any appellate court or that were considered on an incomplete record because of appellate counsel's deficient representation;

(d) A sworn statement of the basis for the claim that appellate counsel's representation was deficient with respect to the assignments of error or arguments raised under division (B)(2)(c) of this rule and the way in which the deficiency prejudicially affected the outcome of the appeal, which may include citations to applicable authorities and references to the record;

(e) Any parts of the record available to the applicant and all supplemental affidavits upon which the applicant relies.

(3) Any application for reopening must be served by the defendant on the attorney for the prosecution in accordance with App.R. 31(D). The clerk of the court of appeals must also send a copy of the application to the attorney for the prosecution. The attorney for the prosecution, within 30 days from the filing of the application, may file and serve affidavits, parts of the record, and a memorandum of law in opposition to the application.

(4) An application for reopening and an opposing memorandum may not exceed ten pages, exclusive of affidavits and parts of the record. No other briefing from the parties is permitted except at the request of the court, and oral argument of an application for reopening is not permitted except at the request of the court.

(5) The granting of an application for reopening is appropriate if there is a genuine issue as to whether the applicant was deprived of the effective assistance of counsel on appeal.

(6) If the court denies the application, it should state in the entry the reasons for denial.

(7) If the court grants the application, it should do both of the following:

(a) Appoint counsel to represent the applicant if the applicant is indigent and not currently represented;

(b) Impose conditions, if any, necessary to preserve the status quo during the pendency of the reopened appeal. The clerk must notify the parties and the clerk of the trial court about the filing of the entry granting the application.

(8) If the application is granted, the case will proceed as an initial appeal in accordance with these rules except that the court may limit its review to those assignments of error and arguments not previously considered. The time limits for preparation and transmission of the record under App.R. 9 and 10 will run from the filing of the entry granting the application. The parties should address in their briefs the claim that representation by prior appellate counsel was deficient and that the applicant was prejudiced by that deficiency.

(9) If the court of appeals determines that an evidentiary hearing is necessary, the evidentiary hearing may be conducted by the court or referred to a magistrate.

(10) If the court finds that the performance of appellate counsel was deficient and that the applicant was prejudiced by that deficiency, the court should vacate its prior judgment and enter the appropriate judgment. If the court does not so find, the court should issue an order confirming its prior judgment.

Effective Date: July 1, 1971

Amended: July 1, 1975; July 1, 1993; July 1, 1994; July 1, 1997; July 1, 2010; July 1, 2011; July 1, 2012; July 1, 2026

Staff Note (July 1, 2010 Amendment)

App.R. 26(A) has now been subdivided into two provisions: App.R. 26(A)(1) governs applications for reconsideration (former App.R. 26(A)), while App.R. 26(A)(2) is a new provision governing en banc consideration.

The amendment to former App.R. 26(A) (now App.R. 26(A)(1)) contemplates a future amendment to the Supreme Court Practice Rules that will extend the time to appeal to the Supreme Court if a party has filed a timely application for reconsideration in the court of appeals. It also ensures a responding party’s full ten-day response period, even if that party does not receive the application on the day it is filed. Because the ten-day response period now begins to run from the date of service, a party served by mail now has an extra three days to file an opposition. See App.R. 14(C). Finally, the amendment permits the moving party a reply in support of the application within seven days of service of the opposition; this clarification avoids any ambiguity about the right to file a reply in support of a motion under App.R. 15(A).

The addition of App.R. 26(A)(2) is designed to address the Supreme Court’s decision in McFadden v. Cleveland State Univ., 120 Ohio St.3d 54, 2008-Ohio-4914, 896 N.E.2d 672 and, in particular, the holding that “if the judges of a court of appeals determine that two or more decisions of the court on which they sit are in conflict, they must convene en banc to resolve the conflict.” Id., paragraph two of the syllabus. The new provision establishes a standard for parties to seek en banc consideration under the same procedures that govern applications for reconsideration under App.R. 26(A)(1), except that a party may also seek consideration en banc within ten days of a judgment or order ruling on an application for reconsideration if that ruling itself creates an intra-district conflict that did not appear from the panel’s original decision. The new provision also allows courts of appeals to establish their own procedures to the extent consistent with the statewide rule.

Former App.R 26(C), which required courts of appeals to decide applications for reconsideration within 45 days, has been eliminated in anticipation of an amendment to the Supreme Court Rules of Practice that will toll the time to appeal to the Supreme Court if a party has filed a timely application for reconsideration or en banc consideration in the court of appeals.

Staff Note (July 1, 2011 Amendment)

There are two amendments to App.R. 26(A)(1)(a). The first changes the event that starts the running of the ten-day period for filing an application for reconsideration. Under the former rule, the motion was due before the judgment or order of the court was approved by the court and filed by the court with the clerk for journalization or within ten days of the announcement of the court’s decision, whichever was later. Under the amended rule, the motion is due within ten days after the clerk complies with the mailing and docketing requirements of App.R. 30(A). And because the timing requirements for applications for reconsideration under App.R. 26(A)(1)(a) also govern the timing for filing an application for en banc consideration under App.R. 26(A)(2), the clerk’s compliance with the mailing and docketing requirements of App.R. 30(A) also now trigger the time to file an application for en banc consideration. The second amendment to App.R. 26(A)(1)(a) deletes language warning that an application for reconsideration did not extend the time to appeal to the Ohio Supreme Court; effective July 1, 2010, a timely filed application for reconsideration under App.R. 26(A)(1) or for en banc consideration under App.R. 26(A)(2) does extend the time to appeal to the Ohio Supreme Court under S.Ct. Prac. R. 2.2(A)(5) and (6).

There are also several amendments to App.R. 26(A)(2). Two of them are clarifications. The first clarification appears in App.R. 26(A)(2)(a) and is designed to clarify that a majority of the “en banc court”, a defined term that does not include judges who have recused themselves or been disqualified, must agree to consider a case en banc. By contrast, under App.R. 26(A)(2)(d), in order to render an en banc decision, “a majority of the full-time judges of the appellate district” including those who do not actually participate in

the en banc consideration, must agree. The second clarification appears in App.R. 26(A)(2)(b), which expressly permits the en banc court to decide sua sponte to consider a case en banc. No substantive changes are intended by either of these amendments.

Two substantive amendments to App.R. 26(A)(2)(c) govern the process for sua sponte en banc consideration. First, the rule now specifies that any sua sponte decision to consider a case en banc must be made within ten days of the date the clerk complies with the mailing and docketing requirements of App.R. 30(A). The former rule included no time limit for a sua sponte decision to consider a case en banc, and this addition was intended to ensure finality to the appellate process. Second, if the court decides sua sponte to consider a case en banc, it must vacate the judgments or orders in the case that will be considered en banc so that the time for a party to appeal to the Ohio Supreme Court does not run concurrently with the court’s sua sponte en banc consideration. A recent amendment to the Supreme Court Practice Rules extends the time to appeal to the Ohio Supreme Court in the event that a party files a timely application for en banc consideration, but there is no such provision in the event the court of appeals decides sua sponte to consider a case en banc. See S.Ct. Prac. R. 2.2(a)(6).

Staff Note (July 1, 2012 Amendment)

The amendment to App.R. 26(A)(2)(c) removes language added in 2011 that required a court of appeals to vacate a panel decision in the event of a sua sponte decision to consider a case en banc. That language was added to ensure that a party’s time to appeal to the Supreme Court would not begin to run while en banc consideration was pending. But the language is no longer necessary in light of a 2011 amendment to S.Ct.Prac.R. 2.2.

Staff Note (July 1, 2026 Amendment)

Removed from divisions (A)(1)(a) and (A)(2)(c) is language that appeared to require the clerk of the court of appeals to mail notices to the parties about the filing of the court’s orders and judgments. The amended rule indicates that the clerk is to send to each party a copy of the court’s order or judgment itself rather than just a notice.

Those same divisions of the rule set a new triggering event that starts the time period when applications for reconsideration and for en banc consideration can be filed. Formerly, that period did not begin to run until the clerk had sent a notice to the parties about the filing of the court’s order or judgment. Under the amended rule, the time period for filing applications for reconsideration or for en banc consideration begins to run when the court’s order or judgment is issued.

To account for that possibly earlier starting date for the running of the application period, the amended rule shifts the filing period from 10 days to 15 days, meaning that any application for reconsideration or for en banc consideration must generally be filed within 15 days from the filing date of the court’s judgment or order.

The former rule was silent about the content and length of any application for reconsideration filed under division (A). The amended rule—in division (A)(1)—explains briefly the information that a reconsideration request should contain and also establishes a limit of 15 pages for any application for reconsideration. The amendment similarly sets a 15-page cap on the length of any response. And finally, the amended rule indicates that no reply brief is to be filed by the applicant.

Division (A)(2) of the amended rule implements the same page limits for en banc applications and responses outlined above for reconsideration applications, and it includes a similar ban on the filing of any reply brief by the applicant.

Amended division (A)(2)(c) now includes the kind of triggering-event language described above in the second paragraph of this staff note. That is, the amendment provides that the time period for filing an en banc application begins to run when the court’s order or judgment is issued rather than when the clerk sends a notice about the issuance of the order or judgment. As with the reconsideration provision in division

(A)(1), the en banc provision in division (A)(2) accounts for that new filing-period triggering event by extending from 10 days to 15 days the window for the filing of any en banc applications.

Amended division (A)(2)(b), in addressing instances when an appellate court orders en banc review of one of its own decisions even in the absence of a request from a party for that extraordinary procedure, now includes the kind of triggering-event language described above in the second paragraph of this staff note. That is, the amendment provides that the time period within which the court of appeals can, even in the absence of an en banc application from a party, decide to review en banc one of its own decisions begins to run when the court’s order or judgment is issued rather than when the clerk sends a notice about the issuance of the order or judgment. The time period for the court to take that step on its own remains unchanged at 10 days. Also, nothing in the amendment alters the recent holding of the Supreme Court in State v. Maldonado, 2024-Ohio-2652, ¶ 20 (“App.R. 26(A)(2) requires that a decision in a case be issued by a three-judge panel before the court of appeals may sua sponte order en banc consideration of an issue in that case”).

Other stylistic updates intended to improve the readability of the rule and to bring greater clarity to some of its existing provisions have also been made.