State v. Anderson

2020 Ohio 735

• Court: Ohio Court of Appeals
• Decided: March 2, 2020
• Docket: 2019-L-169
• Status: Published

Opinion

[Cite as State v. Anderson, 2020-Ohio-735.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

LAKE COUNTY, OHIO

STATE OF OHIO, : MEMORANDUM OPINION

Plaintiff-Appellee, : CASE NO. 2019-L-169 - vs - :

HERBERT E. ANDERSON, :

Defendant-Appellant. :

Criminal Appeal from the Court of Common Pleas, Case No. 2009 CR 000410.

Judgment: Dismissed.

Charles A. Coulson, Lake County Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee).

Herbert E. Anderson, pro se, PID: A572-384, Richland Correctional Institution, 1001 Olivesburg Road, P.O. Box 8107, Mansfield, OH 44905 (Defendant-Appellant).

CYNTHIA WESTCOTT RICE, J.

{¶1} On December 23, 2019, appellant, Herbert E. Anderson, pro se, filed a

motion for leave to file a delayed appeal pursuant to App.R. 5(A). No notice of appeal

was filed with the trial court.

{¶2} Appellant indicates in his motion that he appeals the trial court’s

November 5, 2019 judgment entry which denied his request for findings of fact and

conclusions of law pursuant to Civ.R. 52. However, the motion sets forth reasons for

not filing a timely appeal from an August 22, 2019 judgment entry denying his pro se Writ of Error Coram Noblis, indicating that he did not receive notice of the entry until

September 4, 2019.

{¶3} App.R. 5(A) provides:

{¶4} “(1) After the expiration of the thirty day period provided by App.R. 4(A) for

the filing of 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:

{¶5} “(a) Criminal proceedings;

{¶6} “(b) Delinquency proceedings; and

{¶7} “(c) Serious youthful offender proceedings.

{¶8} “(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 the 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 appeal to

the clerk of the court of appeals who shall serve the notice of appeal and the motions

upon the prosecuting attorney.” (Emphasis added.)

{¶9} Appellant has not complied with App.R. 5(A) because he failed to file a

notice of appeal in the trial court concurrently with the filing of his motion for leave to

appeal with this court. See State v. Fisher, 46 Ohio App.2d 279 (1975). In addition,

appellant’s motion fails to advance reasons for filing an untimely appeal from the

November 5, 2019 entry he is appealing.

{¶10} Thus, appellant’s pro se motion is overruled. This matter is dismissed.

2 {¶11} We note that appellant is not barred from filing a new motion for leave to

appeal along with a notice of appeal that complies with the Ohio Rules of Appellate

Procedure and the local rules of this court.

THOMAS R. WRIGHT, J.

MATT LYNCH, J.,

concur.