State v. Goss

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[Cite as State v. Goss, 2006-Ohio-6693.] THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT TRUMBULL COUNTY, OHIO STATE OF OHIO, Plaintiff-Appellee, : MEMORANDUM OPINION : CASE NO. 2006-T-0102 - vs - : TIMOTHY GOSS, Defendant-Appellant. : : Criminal appeal from the Court of Common Pleas, Case No. 02 CR 486. Judgment: Appeal dismissed. Dennis Watkins, Trumbull County Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH, 44481 (For Plaintiff-Appellee). Timothy Goss, pro se, PID: 452-873, Belmont Correctional Institution, P.O. Box 540, St. Clairsville, OH, 43950 (Defendant-Appellant). COLLEEN MARY O TOOLE, J. {¶1} On September 12, 2006, appellant, Timothy Goss, filed a motion for leave to file a delayed appeal pursuant to App.R. 5(A). The appealed judgment is a July 21, 2006 decision issued by the Trumbull County Court of Common Pleas which denied appellant s motion to modify his sentence. {¶2} On September 20, 2006, appellee, State of Ohio, filed a response in opposition to the motion indicating that the delayed appeal should be denied because the appealed order is not a final appealable order. Specifically, appellee indicates that appellant s motion to modify sentence in the trial court was actually a motion for judicial release, and the denial of such a motion does not affect a substantial right and constitute a final appealable order. In support of its argument, appellee cites State v. Brown, 11th Dist. No. 2004-T-0001, 2004-Ohio-1433. {¶3} For the following reasons, we agree with appellee. In State v. Coffman, 91 Ohio St.3d 125, 2001-Ohio-296, the Supreme Court of Ohio expressly held that a trial court s denial of shock probation is never a final appealable order. Id. at 126. Every appellate court in Ohio that has addressed this issue after Coffman has held that that the same logic is applicable to a denial of a motion for judicial release since it mirrors shock probation. State v. Ingram, 10th Dist. No. 03AP-149, 2003-Ohio-5380; State v. Greene, 2d Dist. No. 02-CA-17, 2002-Ohio-2595; State v. Galbreath (June 11, 2001), 12th Dist. No. CA2000-10-078, 2001 Ohio App. LEXIS 2607. Since there is no right to judicial release, the denial of a motion for judicial release cannot affect a substantial right as that term is defined in R.C. 2505.02 (A)(1). {¶4} Based upon the foregoing analysis, appellant s motion for leave to file a delayed appeal is hereby overruled. {¶5} Appeal dismissed. DONALD R. FORD, P.J., DIANE V. GRENDELL, J., concur. 2

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