State v. Goss, Unpublished Decision (12-15-2006)

2006 Ohio 6693

Opinion

MEMORANDUM OPINION {¶ 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.