State v. Kaine, Unpublished Decision (8-28-2000)

JOURNAL ENTRY AND OPINION Applicant, Charles Kaine, has filed an application for reopening pursuant to App.R. 26 (B). The applicant is attempting to reopen the appellate judgment that was rendered by this court in State v. Kaine (Nov. 18, 1999), Cuyahoga App. No. 75159, unreported, which affirmed the trial court's judgment. The trial court found the applicant to be a probation violator, terminated the applicant's probation, and ordered the applicant's original sentence into execution. For the following reasons, we deny the application for reopening.

App.R. 26 (B) provides in part 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 counsel. An application for reopening shall be filed in the court of appeals where the appeal was decided within ninety days from journalization of the appellate judgment unless the applicant shows good cause for filing at a later date. (Emphasis added.)

Herein, no appellate judgment, which examined the applicant's conviction and sentence as rendered in State v. Kaine, Cuyahoga County Court of Common Pleas Case No. CR-325705, was announced and journalized by this court. Thus, this court is prevented from considering the applicant's application for reopening as made pursuant to App.R. 26 (B). State v. Skaggs (May 12, 1999), Cuyahoga App. No. 76301, unreported, reopening disallowed (Sept. 21, 1999), Motion No. 7505. See, also, State v. Loomer (1996),76 Ohio St.3d 398; State v. Halliwell (Jan. 29, 1999), Cuyahoga App. No. 70369, unreported, reopening disallowed (Jan. 29, 1999), Motion No. 00187; State v. Fields (Feb. 29, 1996), Cuyahoga App. No. 68906, unreported, reopening disallowed (Sep. 5, 1997), Motion No. 84867; State v. Williams (Oct. 31, 1996), Cuyahoga App. No. 69936, unreported, reopening disallowed (May 7, 1997), Motion No. 82993. It must also be noted that a probation revocation proceeding is not a criminal proceeding thus preventing the applicant from employing App.R. 26 (B) to reopen the appeal which reviewed the trial court's probation revocation hearing and finding of probation violation. Cf. Gagnon v.Scarpelli (1973), 411 U.S. 778; United States v. Johnson (1972),455 F.2d 932; State v. Ferguson (1991), 72 Ohio App.3d 714.

Accordingly, the applicant's application for reopening is denied.

JOHN T. PATTON, J. and JAMES D. SWEENEY, J., CONCUR.

_____________________________________ TIMOTHY E. McMONAGLE, PRESIDING JUDGE