State v. Henderson

2014 Ohio 2061

• Court: Ohio Court of Appeals
• Decided: May 15, 2014
• Docket: 100385
• Status: Published

Opinion

[Cite as State v. Henderson, 2014-Ohio-2061.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 100385

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

ERIC L. HENDERSON DEFENDANT-APPELLANT

JUDGMENT: DISMISSED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-11-557444

BEFORE: Keough, P.J., Kilbane, J., and Blackmon, J.

RELEASED AND JOURNALIZED: May 15, 2014 APPELLANT

Eric Henderson, pro se Inmate No. 623-389 Lake Erie Correctional Institution P.O. Box 8000 Conneaut, Ohio 44030

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor By: Mary H. McGrath Assistant Prosecuting Attorney The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 KATHLEEN ANN KEOUGH, P.J.:

{¶1} Defendant-appellant, Eric L. Henderson, appeals the trial court’s decision

denying his notice for a final appealable order. For the reasons that follow, we dismiss

his appeal as untimely.

{¶2} In December 2011, Henderson was charged in an eight-count indictment with

aggravated burglary, aggravated robbery, and kidnapping, with each count containing

firearm specifications. The state also sought forfeiture of the weapon and property used

in these offenses. On March 21, 2012, Henderson pleaded guilty to two amended counts

of aggravated robbery (Counts 3 and 4) and the attendant three-year firearm specifications;

he also agreed to forfeit the seized firearm. The remaining counts were nolled, and

Henderson was sentenced to a total of ten years in prison. On April 4, 2012, the trial

court entered a corrected sentencing entry to correct a clerical error in its original March

21, 2012 sentencing entry. The correction clarified that Count 4 was not nolled.

{¶3} On April 19, 2012, Henderson filed a direct appeal of his convictions and

requested from the trial court that a transcript be prepared at the state’s expense and for

appointment of counsel. The trial court denied his request for a transcript at the state’s

expense, determining that Henderson “is not entitled to an appeal of right, per R.C.

2953.08.” This court dismissed his appeal for failure to file the record. See State v.

Henderson, 8th Dist. Cuyahoga No. 98254 (June 15, 2012). {¶4} In December 2012, the trial court denied Henderson’s motions to withdraw his

guilty plea and to suspend the payment of court costs until release from prison. No appeal

was taken from these orders.

{¶5} In May 2013, Henderson moved the trial court “for a final appealable order.”

In support of his motion, he contends that he was denied his “one appeal as of right” and

that the March 21, 2012 sentencing entry was void. The trial court ordered that

Henderson’s motion be stricken because the trial court’s April 2012 corrected sentencing

entry had alleviated the clerical error, which made Henderson’s convictions final and

appealable. Henderson did not appeal this decision.

{¶6} In August 2013, Henderson filed a “notice for a final appealable order,” again

requesting a final appealable order from the March 21, 2012 sentencing entry. The trial

court denied his request. It is from this order that Henderson appeals, raising one

assignment of error — “the trial court failed to consider proportionality and consistency in

fashioning the prison sentence.” This assignment of error challenges the 2012 sentencing

order.

{¶7} App.R. 3(D) provides, in pertinent part, that the notice of appeal “shall

designate the judgment, order or part thereof appealed from * * *.” Henderson’s notice of

appeal designates the trial court’s order denying his request for a final appealable order as

the order or judgment appealed from, not the 2012 sentencing order.

{¶8} It is axiomatic that the notice of appeal must specify the judgment being

appealed. See App.R. 3(D); State v. Pond, 8th Dist. Cuyahoga No. 91061, 2009-Ohio-849, ¶ 4. A court of appeals lacks jurisdiction to review a judgment or order

that is not designated in the notice of appeal. Parks v. Baltimore & Ohio RR., 77 Ohio

App.3d 426, 427, 602 N.E.2d 674 (8th Dist.1991). Henderson is attempting to bootstrap a

claim that is now time-barred; thus, this court is without jurisdiction to consider it. State

v. Cottrell, 8th Dist. Cuyahoga No. 95053, 2010-Ohio-5254, ¶ 19, citing App.R. 4 and

State v. Weese, 9th Dist. Medina Nos. 2742-M and 2760-M, 1998 Ohio App. LEXIS 2124

(May 13, 1998).

{¶9} Moreover, Henderson filed a timely direct appeal of his convictions in June

2012. Any issue regarding his sentence could have been raised in that appeal; however,

because he failed to file the record, his direct appeal was dismissed. Therefore, res

judicata further bars consideration of his argument on appeal.

{¶10} Appeal dismissed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.

KATHLEEN ANN KEOUGH, PRESIDING JUDGE

MARY EILEEN KILBANE, J., and PATRICIA ANN BLACKMON, J., CONCUR