[Cite as Westlake v. Gordon, 2015-Ohio-296.]


                Court of Appeals of Ohio
                                  EIGHTH APPELLATE DISTRICT
                                     COUNTY OF CUYAHOGA

                             ___________________________________

                                JOURNAL ENTRY AND OPINION
                                          No. 100295
                             ___________________________________


                                        CITY OF WESTLAKE

                                                       PLAINTIFF-APPELLANT

                                                 vs.

                                          NICOLE GORDON

                                                       DEFENDANT-APPELLEE




                                           JUDGMENT:
                                       APPLICATION DENIED



                                     Rocky River Municipal Court
                                       Case No. 13 CRB 0297
                                      Application for Reopening
                                         Motion No. 479147

        RELEASE DATE: January 28, 2015
ATTORNEYS FOR APPELLANT

John D. Wheeler
Director of Law

By: Sean F. Kelleher
Assistant Director of Law
City of Westlake
27700 Hilliard Blvd.
Westlake, OH 44145


ATTORNEYS FOR APPELLEE

Robert L. Tobik
Cuyahoga County Public Defender

By: John T. Martin
Assistant Public Defender
Courthouse Square Suite 200
310 Lakeside Avenue
Cleveland, OH 44113
SEAN C. GALLAGHER, P.J.:

       {¶1} Applicant, Nicole Gordon, seeks to vacate this court’s opinion and reopen the city of

Westlake’s appeal in Westlake v. Gordon, 8th Dist. Cuyahoga No. 100295, 2014-Ohio-3031, to

allow further briefing and argument. The city of Westlake has opposed the application to

reopen. The application is denied for the reasons that follow.

       {¶2} The city of Westlake appealed from the municipal court’s decision that granted

Gordon’s motion to suppress evidence that was seized during a lawful traffic stop and a

subsequent search of Gordon’s vehicle.        The majority opinion of this court reversed the

municipal court’s decision on the motion to suppress after finding that the police had probable

cause to search the vehicle.     The matter was remanded to the municipal court for further

proceedings.

       {¶3} On July 21, 2014, Gordon, through counsel, filed a timely motion to reconsider this

court’s opinion, which motion was denied on September 2, 2014. Gordon has not pursued an

appeal to the Ohio Supreme Court. In her motion for reconsideration, Gordon raised the same

argument that she now offers as the basis for reopening the appeal pursuant to App.R. 26(B),

which is that her Sixth Amendment right to effective assistance of counsel was violated due to a

lack of representation on appeal.

       {¶4} App.R. 26(B)(1) states in pertinent part as follows: “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 appellate counsel.”

       {¶5} This application does not seek to reopen the appeal of a judgment of conviction and

sentence.   It seeks to reopen the state’s appeal from the trial court’s order that granted
appellant’s suppression motion. This court has previously determined that this falls outside the

scope of App.R. 26(B). State v. Fields, 8th Dist. Cuyahoga No. 68906, 1996 Ohio App. LEXIS

335 (Sept. 5, 1997) (denying an application to reopen the state’s appeal of a suppression motion

as being outside the scope of App.R. 26(B)).

       {¶6} The explicit provisions of App.R. 26(B) are limited to reopening appeals of a

conviction and sentence. State v. Gaston, 8th Dist. Cuyahoga No. 92242, 2009-Ohio-4715, ¶ 3.

 In Gaston, this court concluded that an application to reopen an appeal involving the denial of

the appellant’s motion for postconviction relief fell outside the scope of App.R. 26(B).      Id.,

citing State v. Halliwell, 8th Dist. Cuyahoga No. 70369, 1996 Ohio App. LEXIS 5750 (Dec. 30,

1996), reopening disallowed, motion No. 70369, 1999 Ohio App. LEXIS 285 (Jan. 28, 1999)

(ruling that App.R. 26(B) does not apply to appeals from an adverse ruling on a motion to vacate

a guilty plea); and State v. Shurney, 8th Dist. Cuyahoga No. 64670, 1994 Ohio App. LEXIS 896

(Mar. 10, 1994), reopening disallowed, motion No. 60758 (May 15, 1995) (App.R. 26(B) applies

only to the direct appeal of a criminal conviction; it does not apply to subsequent postconviction

proceedings, including motions to vacate sentence and hearings to determine the propriety of

guilty pleas); and State v. Loomer, 76 Ohio St.3d 398, 667 N.E.2d 1209 (1996). “App.R. 26(B)

applies only to appeals from the judgment of conviction and sentence and not other collateral

matters arising in a criminal case, including the reversal of a motion to dismiss.” Gaston,

2009-Ohio-4715, ¶ 3.

       {¶7} Appellant relies on the federal authority of Fields v. Bagley, 275 F.3d 478 (6th

Cir.2001), which granted habeas corpus relief after finding that a criminal defendant was denied

any assistance of counsel in the state’s appeal of the trial court’s ruling that suppressed the

evidence upon which the charges against him were based and that Fields was prejudiced by the
lack of assistance. Id. at 484. The federal court’s decision in Fields, however, was not based

on an analysis of ineffective of assistance of appellate counsel pursuant to Ohio’s App.R. 26(B).

Fields neither expanded the scope of App.R. 26(B) nor did it overturn the state law that has

interpreted the scope of it.   “It is axiomatic that state courts are the final authority on state law.”

 Hutchison v. Marshall, 744 F.2d 44, 46 (6th Cir.1984).

       {¶8} The application for reopening is denied.



SEAN C. GALLAGHER, PRESIDING JUDGE

MARY EILEEN KILBANE, J., and
MELODY J. STEWART, J., CONCUR
