[Cite as State v. Damron, 2011-Ohio-165.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY
STATE OF OHIO, : Case No. 10CA3375 : Plaintiff-Appellant, : : DECISION AND v. : JUDGMENT ENTRY : JAMES E. DAMRON, : RELEASED 01/07/11 : Defendant-Appellee. : ______________________________________________________________________ APPEARANCES:
James E. Damron, Chillicothe, Ohio, pro se Appellant
Mark E. Kuhn, SCIOTO COUNTY PROSECUTOR, Portsmouth, Ohio, for appellee. ______________________________________________________________________ Harsha, P.J.
{¶1} James E. Damron appeals the trial court’s denial of his post-sentence
“motion to withdraw” his guilty pleas to two counts of murder. However, Damron filed
his notice of appeal outside the time frame specified in App.R. 4(A). Therefore, we lack
jurisdiction to consider this appeal and must dismiss it.
I. Facts
{¶2} In November 2002, the Scioto County grand jury indicted Damron on two
counts of aggravated murder with firearm specifications.1 Damron ultimately pleaded
guilty to two counts of murder (a lesser included offense of aggravated murder) without
firearm specifications, in March 2003. The trial court sentenced Damron to a prison
1 The indictment mistakenly referred to the second specification as a “SPECIFICATION AS TO COUNT ONE” of the indictment even though it immediately followed the second count of aggravated murder. Scioto App. No. 10CA3375 2
term of 15 years to life on each count and ordered him to serve the terms concurrently.
In December 2009, Damron filed a “MOTION TO WITHDRAW GUILTY PLEA[S].”
Damron repeatedly referenced Crim.R. 32.1 in his memorandum in support of the
motion. However, the trial court treated his motion as a petition for post-conviction relief
and found the petition untimely under R.C. 2953.21. Thus the trial court denied
Damron’s “MOTION TO WITHDRAW GUILTY PLEA[S]” on March 9, 2010 without a
hearing. Damron filed a motion for reconsideration of that order, which the trial court
also denied on March 23, 2010.
{¶3} Damron appealed from the order denying the motion for reconsideration.
On June 4, 2010, we dismissed that appeal in State v. Damron, Scioto App. No.
10CA3347 and explained that a motion for reconsideration of a final order, i.e. the order
that denied the motion to withdraw, is a nullity. Thus, the trial court’s order purporting to
overrule that motion also constituted a nullity and was not a final, appealable order.
{¶4} Subsequently, Damron filed a motion asking the trial court to “issue a
‘Final Appealable Order’” with regard to the “motion to withdraw” his pleas. On June 23,
2010, the court issued a “NUNC PRO TUNC JUDGMENT ENTRY” entry, which states
the March 9, 2010 entry “shall include the following language: ‘This is a final appealable
order.’” Damron now appeals from the trial court’s June 23, 2010 entry in an effort to
challenge the court’s denial of his motion to withdraw his guilty pleas. Damron filed his
notice of appeal on July 8, 2010.
II. Assignment of Error
{¶5} Damron raises the following assignment of error for our review:
THE TRIAL COURT ABUSED IT’S [SIC] DISCRETION BY DENYING DEFENDANT’S MOTION TO WITHDRAW HIS PLEA IN VIOLATION OF Scioto App. No. 10CA3375 3
HIS DUE PROCESS RIGHTS AS GUARANTEED BY THE FIFTH AND FOURTEETH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTIONS 10 AND 16, ARTICLE 1 OF THE OHIO CONSTITUTION.
III. Jurisdiction
{¶6} Before we address the merits of the appeal, we must decide whether we
have jurisdiction to do so. Appellate courts “have such jurisdiction as may be provided
by law to review and affirm, modify, or reverse judgments or final orders of the courts of
record inferior to the court of appeals within the district[.]” Section 3(B)(2), Article IV,
Ohio Constitution. Under App.R. 4(A), in a criminal case “[a] party shall file [a] notice of
appeal * * * within thirty days of the * * * entry of the judgment or order appealed * * *.”
“[F]ailure to file a timely notice of appeal under App.R 4(A) is a jurisdictional defect.” In
re H.F., 120 Ohio St.3d 499, 2008-Ohio-6810, 900 N.E.2d 607, at ¶17.
{¶7} Here, the trial court treated Damron’s motion to withdraw as a petition for
post-conviction relief, not a Crim.R. 32.1 motion. We do not share the trial court’s
conclusion about the nature of the relief Damron’s motion requested. We conclude the
motion was based upon Crim.R. 32.1 and simply sought to withdraw his plea after
sentencing. Thus, to the extent that the court applied R.C. 2953.21 in deciding the
motion, it erred. See State v. Bush, 96 Ohio St.3d 235, 2002-Ohio-3993, 773 N.E.2d
522, at syllabus (“R.C. 2953.21 and 2953.23 do not govern a Crim.R. 32.1 post-
sentence motion to withdraw a guilty plea.”). Nonetheless, a trial court’s order denying
a post-sentence Crim.R. 32.1 motion to withdraw a plea constitutes a final appealable
order. See State v. Kramer, Franklin App. No. 03AP-633, 2004-Ohio-2646, at ¶¶2-5;
State v. Davis (Apr. 20, 1999), Vinton App. No. 98CA523, 1999 WL 249716, at *4. Scioto App. No. 10CA3375 4
{¶8} Moreover, even if we are wrong and the court correctly characterized the
motion as a petition for post-conviction relief, the court’s denial of the motion still
constituted a final, appealable order. When a court dismisses a petition for post-
conviction relief without an evidentiary hearing, as the trial court did in this case, the
court must make findings of fact and conclusions of law. State v. Knott, Athens App.
No. 03CA6, 2004-Ohio-510, at ¶7, citing R.C. 2953.21(C). “The time for appeal does
not begin to run until the findings of fact and conclusions of law are filed.” Id. at ¶8,
citing State v. Mapson (1982), 1 Ohio St.3d 217, 218-19, 438 N.E.2d 910 (per curiam).
“However, designated findings of fact and conclusions of law are not required if the
court issues a judgment entry that is sufficiently detailed to permit appellate review.” Id.,
citing State ex rel. Carrion v. Harris (1988), 40 Ohio St.3d 19, 20, 530 N.E.2d 1330 (per
curiam). Although the court in the present case did not specifically label its findings and
conclusions, it issued a detailed judgment entry setting forth its reasons for denying the
purported petition. Thus the March 9, 2010 entry satisfies the purpose of R.C.
2953.21(C).
{¶9} Therefore, regardless of how we characterize Damron’s “MOTION TO
WITHDRAW GUILTY PLEA[S],” the trial court’s March 9, 2010 entry denying his
request constitutes the final order that determined the action below, i.e. the action to
either withdraw the plea under Crim.R. 32.1 or to seek post-conviction relief. This entry
is this order from which Damron should have appealed.
{¶10} Damron had 30 days to file his notice of appeal under App.R. 4(A) but did
not. Instead, he waited until July 8, 2010 to file a notice of appeal from the nunc pro
tunc entry. The nunc pro tunc entry made explicit what was already implicit in the Scioto App. No. 10CA3375 5
March 9, 2010 order – that the March entry constituted a final, appealable order.
However, the trial court’s issuance of the nunc pro tunc entry did not restart the clock
under App.R. 4(A).
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[Cite as State v. Damron, 2011-Ohio-165.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY
STATE OF OHIO, : Case No. 10CA3375 : Plaintiff-Appellant, : : DECISION AND v. : JUDGMENT ENTRY : JAMES E. DAMRON, : RELEASED 01/07/11 : Defendant-Appellee. : ______________________________________________________________________ APPEARANCES:
James E. Damron, Chillicothe, Ohio, pro se Appellant
Mark E. Kuhn, SCIOTO COUNTY PROSECUTOR, Portsmouth, Ohio, for appellee. ______________________________________________________________________ Harsha, P.J.
{¶1} James E. Damron appeals the trial court’s denial of his post-sentence
“motion to withdraw” his guilty pleas to two counts of murder. However, Damron filed
his notice of appeal outside the time frame specified in App.R. 4(A). Therefore, we lack
jurisdiction to consider this appeal and must dismiss it.
I. Facts
{¶2} In November 2002, the Scioto County grand jury indicted Damron on two
counts of aggravated murder with firearm specifications.1 Damron ultimately pleaded
guilty to two counts of murder (a lesser included offense of aggravated murder) without
firearm specifications, in March 2003. The trial court sentenced Damron to a prison
1 The indictment mistakenly referred to the second specification as a “SPECIFICATION AS TO COUNT ONE” of the indictment even though it immediately followed the second count of aggravated murder. Scioto App. No. 10CA3375 2
term of 15 years to life on each count and ordered him to serve the terms concurrently.
In December 2009, Damron filed a “MOTION TO WITHDRAW GUILTY PLEA[S].”
Damron repeatedly referenced Crim.R. 32.1 in his memorandum in support of the
motion. However, the trial court treated his motion as a petition for post-conviction relief
and found the petition untimely under R.C. 2953.21. Thus the trial court denied
Damron’s “MOTION TO WITHDRAW GUILTY PLEA[S]” on March 9, 2010 without a
hearing. Damron filed a motion for reconsideration of that order, which the trial court
also denied on March 23, 2010.
{¶3} Damron appealed from the order denying the motion for reconsideration.
On June 4, 2010, we dismissed that appeal in State v. Damron, Scioto App. No.
10CA3347 and explained that a motion for reconsideration of a final order, i.e. the order
that denied the motion to withdraw, is a nullity. Thus, the trial court’s order purporting to
overrule that motion also constituted a nullity and was not a final, appealable order.
{¶4} Subsequently, Damron filed a motion asking the trial court to “issue a
‘Final Appealable Order’” with regard to the “motion to withdraw” his pleas. On June 23,
2010, the court issued a “NUNC PRO TUNC JUDGMENT ENTRY” entry, which states
the March 9, 2010 entry “shall include the following language: ‘This is a final appealable
order.’” Damron now appeals from the trial court’s June 23, 2010 entry in an effort to
challenge the court’s denial of his motion to withdraw his guilty pleas. Damron filed his
notice of appeal on July 8, 2010.
II. Assignment of Error
{¶5} Damron raises the following assignment of error for our review:
THE TRIAL COURT ABUSED IT’S [SIC] DISCRETION BY DENYING DEFENDANT’S MOTION TO WITHDRAW HIS PLEA IN VIOLATION OF Scioto App. No. 10CA3375 3
HIS DUE PROCESS RIGHTS AS GUARANTEED BY THE FIFTH AND FOURTEETH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTIONS 10 AND 16, ARTICLE 1 OF THE OHIO CONSTITUTION.
III. Jurisdiction
{¶6} Before we address the merits of the appeal, we must decide whether we
have jurisdiction to do so. Appellate courts “have such jurisdiction as may be provided
by law to review and affirm, modify, or reverse judgments or final orders of the courts of
record inferior to the court of appeals within the district[.]” Section 3(B)(2), Article IV,
Ohio Constitution. Under App.R. 4(A), in a criminal case “[a] party shall file [a] notice of
appeal * * * within thirty days of the * * * entry of the judgment or order appealed * * *.”
“[F]ailure to file a timely notice of appeal under App.R 4(A) is a jurisdictional defect.” In
re H.F., 120 Ohio St.3d 499, 2008-Ohio-6810, 900 N.E.2d 607, at ¶17.
{¶7} Here, the trial court treated Damron’s motion to withdraw as a petition for
post-conviction relief, not a Crim.R. 32.1 motion. We do not share the trial court’s
conclusion about the nature of the relief Damron’s motion requested. We conclude the
motion was based upon Crim.R. 32.1 and simply sought to withdraw his plea after
sentencing. Thus, to the extent that the court applied R.C. 2953.21 in deciding the
motion, it erred. See State v. Bush, 96 Ohio St.3d 235, 2002-Ohio-3993, 773 N.E.2d
522, at syllabus (“R.C. 2953.21 and 2953.23 do not govern a Crim.R. 32.1 post-
sentence motion to withdraw a guilty plea.”). Nonetheless, a trial court’s order denying
a post-sentence Crim.R. 32.1 motion to withdraw a plea constitutes a final appealable
order. See State v. Kramer, Franklin App. No. 03AP-633, 2004-Ohio-2646, at ¶¶2-5;
State v. Davis (Apr. 20, 1999), Vinton App. No. 98CA523, 1999 WL 249716, at *4. Scioto App. No. 10CA3375 4
{¶8} Moreover, even if we are wrong and the court correctly characterized the
motion as a petition for post-conviction relief, the court’s denial of the motion still
constituted a final, appealable order. When a court dismisses a petition for post-
conviction relief without an evidentiary hearing, as the trial court did in this case, the
court must make findings of fact and conclusions of law. State v. Knott, Athens App.
No. 03CA6, 2004-Ohio-510, at ¶7, citing R.C. 2953.21(C). “The time for appeal does
not begin to run until the findings of fact and conclusions of law are filed.” Id. at ¶8,
citing State v. Mapson (1982), 1 Ohio St.3d 217, 218-19, 438 N.E.2d 910 (per curiam).
“However, designated findings of fact and conclusions of law are not required if the
court issues a judgment entry that is sufficiently detailed to permit appellate review.” Id.,
citing State ex rel. Carrion v. Harris (1988), 40 Ohio St.3d 19, 20, 530 N.E.2d 1330 (per
curiam). Although the court in the present case did not specifically label its findings and
conclusions, it issued a detailed judgment entry setting forth its reasons for denying the
purported petition. Thus the March 9, 2010 entry satisfies the purpose of R.C.
2953.21(C).
{¶9} Therefore, regardless of how we characterize Damron’s “MOTION TO
WITHDRAW GUILTY PLEA[S],” the trial court’s March 9, 2010 entry denying his
request constitutes the final order that determined the action below, i.e. the action to
either withdraw the plea under Crim.R. 32.1 or to seek post-conviction relief. This entry
is this order from which Damron should have appealed.
{¶10} Damron had 30 days to file his notice of appeal under App.R. 4(A) but did
not. Instead, he waited until July 8, 2010 to file a notice of appeal from the nunc pro
tunc entry. The nunc pro tunc entry made explicit what was already implicit in the Scioto App. No. 10CA3375 5
March 9, 2010 order – that the March entry constituted a final, appealable order.
However, the trial court’s issuance of the nunc pro tunc entry did not restart the clock
under App.R. 4(A). “A nunc pro tunc entry is the procedure used to correct clerical
errors in a judgment entry, but the entry does not extend the time within which to file an
appeal, as it relates back to the original judgment entry.” State v. Yeaples, 180 Ohio
App.3d 720, 2009-Ohio-184, 907 N.E.2d 333, at ¶15.
{¶11} Because Damron failed to file a timely appeal under App.R. 4(A) and did
not file a motion for delayed appeal under App.R. 5(A), we lack jurisdiction to consider
this appeal and must dismiss it.
APPEAL DISMISSED. Scioto App. No. 10CA3375 6
JUDGMENT ENTRY
It is ordered that the APPEAL BE DISMISSED and that Appellant shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Scioto County Common Pleas Court to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.
Kline, J. & McFarland, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________ William H. Harsha Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.