APPELLATE REVIEW: Untimely appeal App.R. 4(A)(1) appellant may seek leave to appeal an untimely criminal appeal through an App.R. 5(A) motion.
Decided 2021-12-13
[Cite as State v. Morrison,
2021-Ohio-4371
.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY
STATE OF OHIO, CASE NO. 2021-A-0034
Plaintiff-Appellee,
Criminal Appeal from the
-v- Court of Common Pleas
HENRY MORRISON,
Trial Court No. 2021 CR 00078
Defendant-Appellant.
MEMORANDUM
OPINION
Decided: December 13, 2021
Judgment: Appeal dismissed
Colleen M. O’Toole, Ashtabula County Prosecutor, 25 West Jefferson Street, Jefferson,
OH 44047 (For Plaintiff-Appellee).
Henry Morrison, pro se, PID: A783-322, Correctional Reception Center, P.O. Box 300,
Orient, OH 43146 (Defendant-Appellant).
JOHN J. EKLUND, J.
{¶1} On November 3, 2021, appellant, Henry Morrison, pro se, filed a “Motion to
Appeal Plea Agreement,” construed by this court as a notice of appeal. No entry was
attached to the notice, but the record reflects that the trial court issued a September 17,
2021 sentencing entry after appellant entered a written plea of guilty to count one of the
indictment, burglary. The court sentenced appellant to serve 36 months in prison on the
burglary conviction and ordered that the sentence run consecutive to the sentence
imposed in Ashtabula County C.P. No. 2021 CR 96 and concurrent to Crawford County
C.P. No. CP-20-CR-000724-2019.
{¶2} A timely notice of appeal was due no later than October 18, 2021, which
was not a holiday or weekend. The appeal is untimely by 16 days.
{¶3} “… [A] party who wishes to appeal from an order that is final upon its entry
shall file the notice of appeal required by App.R. 3 within 30 days of that entry.” App.R.
4(A)(1).
{¶4} However, an appellant may seek leave to file an untimely criminal appeal
by strictly following App.R. 5(A) which provides:
{¶5} “(1) After the expiration of the thirty day period provided by App.R. 4(A) for
filing a notice of appeal as of right, an appeal may be taken by a defendant with leave of
the court to which the appeal is taken in the following classes of cases:
{¶6} “(a) Criminal proceedings; ….
{¶7} “(2) A motion for leave to appeal shall be filed with the court of appeals and
shall set forth the reasons for the failure of the appellant to perfect an appeal as of right.
Concurrently with the filing of the motion, the movant shall file with the clerk of the trial
court a notice of appeal in the form prescribed by App.R. 3 and shall file a copy of the
notice of appeal in the court of appeals. The movant also shall furnish an additional copy
of the notice of appeal and a copy of the motion for leave to the clerk of the court of
appeals who shall serve the notice of appeal and the motion upon the prosecuting
attorney.”
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Case No. 2021-A-0034
{¶8} Appellant has neither complied with the thirty-day rule set forth in App.R.
4(A)(1) nor sought leave to appeal under App.R. 5(A). Thus, this court is without
jurisdiction to consider the appeal.
{¶9} Appeal dismissed, sua sponte, as untimely.
CYNTHIA WESTCOTT RICE, J.,
THOMAS R. WRIGHT, J.,
concur.
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