State v. Kennedy

2014 Ohio 201

• Court: Ohio Court of Appeals
• Decided: January 17, 2014
• Docket: 99378
• Status: Published

Opinion

[Cite as State v. Kennedy, 2014-Ohio-201.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 99378

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

WILLIAM KEITH KENNEDY DEFENDANT-APPELLANT

JUDGMENT: APPLICATION DENIED

Cuyahoga County Court of Common Pleas Case No. CR-559724 Application for Reopening Motion No. 467824

RELEASE DATE: January 17, 2014

-i- FOR APPELLANT

William Keith Kennedy, pro se Inmate #624-625 Belmont Correctional Institution P.O. Box 540 St. Clairsville, Ohio 43950

ATTORNEY FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor 9th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113 KENNETH A. ROCCO, P.J.:

{¶1} On August 27, 2013, the applicant, William Kennedy, pursuant to App.R.

26(B) and State v. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204 (1992), applied to

reopen this court’s judgment in State v. Kennedy, 8th Dist. Cuyahoga No. 99378, which

this court dismissed on June 18, 2013, for failure to file a record. The state of Ohio did

not file a response. For the following reasons, this court denies the application.

{¶2} In State v. Kennedy, Cuyahoga C.P. No. CR-559724, the grand jury indicted

Kennedy for two counts of kidnapping, four counts of gross sexual imposition, and one

count of rape. On May 24, 2013, Kennedy pleaded guilty to rape and two counts of

gross sexual imposition; the state nolled the other counts. The trial court imposed an

agreed sentence of 16 years.

{¶3} On appeal, this case has a peculiar procedural history. A review of the

courts’ dockets shows that Kennedy first filed a motion for delayed appeal on October 2,

2012. This appeal was assigned court of appeals case number 99018. On November 6,

2012, this court denied the motion for delayed appeal. On January 9, 2013, Kennedy,

pro se, commenced the instant appeal, Case No. 99378, by filing a notice of appeal and a

motion for delayed appeal. On January 11, 2013, this court summarily dismissed the

appeal for failure to file a timely notice of appeal. In January 2013, Kennedy also filed

motions for appointment of counsel and for a transcript at state’s expense in the trial court, which never ruled on them. However, Kennedy never filed such motions in the

instant appeal. On April 1, 2013, Kennedy filed a motion for reconsideration in the

instant appeal. In May, this court granted the motions for reconsideration and for a

delayed appeal and stated that the record was due June 3, 2013. Kennedy never retained

an attorney to represent him and never filed the record. Accordingly, on June 18, 2013,

this court dismissed this appeal for failure to file the record.

{¶4} Kennedy now seeks to reinstate this appeal for ineffective assistance of

appellate counsel. He avers that the public defender’s office mislead him by telling him

to file motions for appointment of counsel and for a transcript at state’s expense with the

county clerk’s office. Nevertheless, in this appeal, Kennedy was representing himself.

A defendant who represents himself on direct appeal may not maintain an App.R. 26(B)

application to reopen. State v. Effinger, 8th Dist. Cuyahoga No. 93450,

2009-Ohio-5242; State v. Chapman, 8th Dist. Cuyahoga No. 96629, 2011-Ohio-4829; and

State v. Hurt, 8th Dist. Cuyahoga No. 96032, 2012-Ohio-4268.

{¶5} Accordingly, this court denies the application to reopen.

__________________________________________ KENNETH A. ROCCO, PRESIDING JUDGE

MARY EILEEN KILBANE, J., and PATRICIA ANN BLACKMON, J., CONCUR