State v. Damron
2011 Ohio 165
Ohio Ct. App.2011Background
- Damron appeals the trial court’s denial of his post-sentence motion to withdraw guilty pleas to two murder counts, filed after sentencing in 2003.
- He filed a notice of appeal on July 8, 2010, but the court treated his motion as Crim.R. 32.1 post-sentence relief rather than a post- conviction petition, creating a jurisdictional timeliness issue.
- Damron had originally been indicted in 2002 on two counts of aggravated murder with firearm specifications and pleaded guilty to two murder counts in 2003, with concurrent 15-to-life terms.
- The trial court denied his 2009 motion to withdraw pleas (treated as petition for post-conviction relief) on March 9, 2010, and denied reconsideration on March 23, 2010.
- On appeal, the Fourth District held the appropriate final appealable order was the March 9, 2010 entry, but Damron filed his notice of appeal outside the 30-day App.R. 4(A) window and did not obtain a delayed appeal under App.R. 5.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of appeal | Damron contends the March 9, 2010 final order was appealable and his July 8, 2010 notice was timely. | The state contends the appeal was untimely under App.R. 4(A) and no delayed appeal was sought. | Appeal dismissed for lack of jurisdiction due to untimely notice of appeal. |
Key Cases Cited
- In re H.F., 120 Ohio St.3d 499 (2008-Ohio-6810) (timeliness defects govern appellate jurisdiction in criminal appeals)
- State v. Bush, 96 Ohio St.3d 235 (2002-Ohio-3993) (Crim.R. 32.1 does not apply to RC 2953.21 petitions for post-conviction relief)
- State v. Kramer, Franklin App. No. 03AP-633 (2004-Ohio-2646) (final order denying post-sentence Crim.R. 32.1 motion is appealable)
- State v. Knott, Athens App. No. 03CA6 (2004-Ohio-510) (needed findings required if court dismisses post-conviction relief petition; otherwise judgment entry may suffice)
- State v. Mapson, 1 Ohio St.3d 217 (1982) (timing for appeal begins after findings/conclusions when required)
- State v. Yeaples, 180 Ohio App.3d 720 (2009-Ohio-184) (nunc pro tunc entries do not restart the appeal period)