2013 Ohio 1946
Ohio Ct. App.2013Background
- Appellant Patrick R. Christopher, appearing pro se, appeals from a February 21, 2012 nunc pro tunc judgment entry in Portage County Municipal Court convicting him of two counts of sexual imposition and sentencing him to a $250 fine and 180 days in jail.
- Appellate notices of appeal were filed January 28, 2013, well beyond the thirty-day deadline under App.R. 4(A).
- The applicable rule required filing by March 22, 2012, as there were no holidays or weekends affecting the deadline.
- App.R. 5(A) permits a delayed appeal with leave when the appeal is not timely filed, and requires a motion for leave to accompany a notice of appeal and show reasons for the delay.
- The trial court and court proceeded to sua sponte dismiss the appeals as untimely.
- The dissent argues for granting a delayed appeal where no prejudice to the state exists and where the rule is interpreted with liberal, flexible standards.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the appeals are timely or properly subject to delayed appeal. | Christopher asserts delayed appeal should be allowed under App.R. 5(A). | The State argues untimely filing warrants dismissal. | Appeals dismissed as untimely. |
| Whether App.R. 5(A) should be liberally construed to permit a delayed appeal in this criminal matter. | Deliberate delay due to fear of retribution can justify a delayed appeal; liberal interpretation supports review on merits. | Delay cannot be excused; fear of retribution is not proper justification. | Dissent advocates liberal interpretation; majority dismisses delayed appeal. |
| If a delayed appeal is permissible, what is the proper procedure for obtaining leave to appeal? | App.R. 5(A) requires a motion for leave with reasons and accompanying notice of appeal. | Requirements of App.R. 5(A) were not satisfied here. | Procedural requirements not satisfied; delay not justified. |
Key Cases Cited
- City of Aurora v. Belinger, 180 Ohio App.3d 178 (2008-Ohio-6772) (recognizes right to appeal and potential for delayed appeal in criminal matters)
- In re Beck, 2002-Ohio-3460 (7th Dist. No. 00 BA 52) (courts should decide cases on merits and apply rules flexibly to achieve justice)
- DeHart v. Aetna Life Ins. Co., 69 Ohio St.2d 189 (1982) (strict adherence to procedural rules yields only when not inadvertent; substantial justice preferred)
- State ex rel. Lapp Roofing & Sheet Metal Co., Inc. v. Indus. Comm., 117 Ohio St.3d 179 (2008-Ohio-850) (court duty to review trial court for error; flexibility in procedure to achieve justice)