Opinion
No. 101228
05-06-2015
STATE OF OHIO PLAINTIFF-APPELLEE v. CARL A. NELSON DEFENDANT-APPELLANT
FOR APPELLANT Carl A. Nelson, pro se Inmate No. 199-605 Grafton Correctional Institution 2500 S. Avon Belden Road Grafton, OH 44044 ATTORNEYS FOR APPELLEE Timothy J. McGinty Cuyahoga County Prosecutor By: Brett Hammond Assistant County Prosecutor 1200 Ontario Street Cleveland, OH 44113
JOURNAL ENTRY AND OPINION JUDGMENT: APPLICATION DENIED Cuyahoga County Court of Common Pleas
Case No. CR-86-212590-B
Application for Reopening
Motion No. 481063
FOR APPELLANT
Carl A. Nelson, pro se
Inmate No. 199-605
Grafton Correctional Institution
2500 S. Avon Belden Road
Grafton, OH 44044
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Brett Hammond
Assistant County Prosecutor
1200 Ontario Street
Cleveland, OH 44113
FRANK D. CELEBREZZE, JR., A.J.:
{¶1} Carl A. Nelson has filed an application for reopening pursuant to App.R. 26(B). Nelson is attempting to reopen the appellate judgment, journalized in State v. Nelson, 8th Dist. Cuyahoga No. 101228, 2014-Ohio-5285, which affirmed his classification as a sexual predator pursuant to former R.C. 2950.09. We decline to reopen Nelson's appeal.
{¶2} 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." Herein, Nelson is attempting to reopen an appellate judgment that affirmed the finding by the trial court that the applicant was a sexual predator.
It must also be noted that sexual predator classifications are civil and not criminal in nature. State v. Cook, 83 Ohio St.3d 404, 1998-Ohio-291, 700 N.E.2d 570; State v. Prunchak, 8th Dist. Cuyahoga No. 88572, 2007-Ohio-3272.
{¶3} An application for reopening, brought pursuant to App.R. 26(B), can only be employed to reopen an appeal from the underlying judgment of conviction and sentence as imposed by the trial court, based upon a claim of ineffective assistance of appellate counsel. State v. Loomer, 76 Ohio St.3d 398, 1996-Ohio-59, 667 N.E.2d 1209. See also State v. Pointer, 8th Dist. Cuyahoga No. 85195, 2014-Ohio-2383; State v. Bronczyk, 8th Dist. Cuyahoga No. 98664, 2013-Ohio-3129; State v. Nicholson, 8th Dist. Cuyahoga No. 97873, 2013-Ohio-1786; and State v. Townsend, 8th Dist. Cuyahoga No. 97544, 2013-Ohio-1653. Because App.R. 26(B) applies only to the direct appeal of a criminal conviction and sentence, it cannot now be employed to reopen the appeal that dealt with Nelson's classification as a sexual predator.
{¶4} Accordingly, the application for reopening is denied. /s/_________
FRANK D. CELEBREZZE, JR., ADMINISTRATIVE JUDGE
SEAN C. GALLAGHER, J., and
MARY EILEEN KILBANE, J., CONCUR