[Cite as State v. Lockhart, 2021-Ohio-3912.]
COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. William B. Hoffman, J. Plaintiff-Appellee : Hon. Earle E. Wise, J. : -vs- : : Case No. 21 CAA 07 0036 JOHN C. LOCKHART : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Delaware County Court of Commo Pleas, Case No. 06-CRI- 01-0011
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: November 3, 2021
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
MELISSA A. SCHIFFEL JOHN C LOCKHART, JR. Delaware County Prosecutor #536014 BY: JACQUELINE J. RAPIER Allen-Oakwood Correctional Institution Assistant Prosecutor Box 4501 145 North Union Street, 3rd Floor Lima OH 45802 Delaware, OH 43015 Delaware County, Case No. 21 CAA 07 0036 2
Gwin, P. J.,
{¶1} Appellant John C. Lockhart [“Lockhart”] appeals from the May 10, 2021
judgment entry of the Delaware County Court of Common Pleas overruling his application
for post-conviction DNA testing.
Facts and Procedural History
{¶2} In 2006, Lockhart was indicted upon three counts of rape in violation of R.C.
2907.02(A)(1)(b) and three counts of gross sexual imposition in violation of R.C.
2907.05(A)(4) arising from his assaults of a 9-year-old child. After trial by jury, Lockhart
was found guilty as charged and sentenced to an aggregate term of life in prison. Lockhart
directly appealed from his convictions and sentences but did not challenge the life
sentence. State v. Lockhart, 5th Dist. Delaware No. 06CAA100080, 2008-Ohio-57, appeal
not allowed, 118 Ohio St.3d 1434, 2008-Ohio-2595, 887 N.E.2d 1203. This Court affirmed
Lockhart’s convictions and sentence. Id.
{¶3} In 2009, Lockhart filed a petition for habeas relief in the U.S. District Court
for the Southern District of Ohio which was denied and dismissed. Lockhart v. Welch, No.
2:09-CV-443, 2011 WL 378905 (S.D. Ohio Feb. 3, 2011).
{¶4} In 2011, Lockhart sought a writ of mandamus, which was denied by this
Court. State ex rel. Lockhart v. Whitney, 5th Dist. Delaware No. 10 CAD 12 0094, 2011-
Ohio-2023, ¶ 4. That judgment was affirmed by the Ohio Supreme Court. State ex rel.
Lockhart v. Whitney, 130 Ohio St.3d 95, 2011-Ohio-4896, 955 N.E.2d 994, ¶ 3.
{¶5} In 2012, Lockhart filed a motion to “correct status of illegal sentence.” The
motion was overruled, a decision we affirmed in State v. Lockhart, 5th Dist. Delaware No.
13 CAA 01 0007, 2013-Ohio-3441, ¶ 10, appeal not allowed, 137 Ohio St.3d 1473, 2014- Delaware County, Case No. 21 CAA 07 0036 3
Ohio-176, 2 N.E.3d 268. In that appeal, we found Lockhart’s original sentence was within
the sentencing guidelines and Lockhart’s argument was barred by res judicata. Id., 2013-
Ohio-3441, ¶ 19.
{¶6} In 2015, Lockhart attempted to challenge his sentence via a state habeas
petition, which was denied. State ex rel. Lockhart v. Shelton, 6th Dist. Lucas No. L-15-
1018, 2015-Ohio-1569, ¶ 10, affirmed sub nom. State ex rel. Lockhart v. Sheldon, 146
Ohio St.3d 468, 2016-Ohio-627, 58 N.E.3d 1124.
{¶7} In 2016, Lockhart filed a motion for resentencing which was denied by the
trial court. In 2018, Lockhart moved the trial court to shorten his sentence by “correcting
a clerical error.” That motion was overruled.
{¶8} In 2020, Lockhart appealed from the trial court’s denial of his motion to
“clarify his sentence,” arguing that the sentences for G.S.I. and rape were ordered to be
served concurrently, thus his indefinite sentence for rape should be four years to life
instead of ten years to life. The trial court overruled the motion by judgment entry dated
June 2, 2020. This Court affirmed the trial court’s decision. State v. Lockhart, 5th Dist.
Delaware No. 20 CAA 07 0027, 2021-Ohio-2418.
{¶9} The instant appeal arises from Lockhart’s March 25, 2021 application for
post-conviction DNA testing pursuant to R.C. 2953.72. Lockhart requested testing of one
item of underwear collected from the victim of the sex offense in 2005.
{¶10} In an entry filed May 10, 2021 the trial court denied the application finding
that Lockhart failed to establish that the requested DNA evidence would be outcome
determinative. Delaware County, Case No. 21 CAA 07 0036 4
{¶11} On May 24, 2021, Lockhart filed a Motion to Reconsider the trial court’s May
10, 2021 Judgment Entry. The trial court overruled Lockhart’s motion by Judgment Entry
filed June 18, 2021.
Assignments of Error
{¶12} “I. TRIAL COURT JUDGE DAVID GORMLEY, OF THE DELAWARE
COUNTY COURT OF COMMON PLEAS, REFUSES TO REVEAL WHOSE SALIVA IS
IN A VICTIM'S PANTIES, THAT THE STATE OF OHIO KNEW WAS IN THOSE PANTIES
OVER A YEAR PRIOR TO APPELLANT'S TRIAL.”
Jurisdiction
{¶13} In the case at bar, we must address the threshold issue of whether the
Notice of Appeal was timely filed. Even if a party does not raise the issue, this court must
address, sua sponte, whether there is a final appealable order ripe for review. State ex
rel. White vs. Cuyahoga Metro. Hous. Aut., 79 Ohio St.3d 543, 544, 1997-Ohio-366, 684
N.E.2d 72.
{¶14} An appeal as of right may be taken by the filing of a timely notice of appeal
with the clerk of the trial court in which the judgment was entered. App.R. 3(A). The only
jurisdictional requirement for an appeal as of right is the filing of the notice of appeal in a
timely manner. App.R. 4(A) states:
A party shall file the notice of appeal required by App.R. 3 within thirty
days of the later of entry of the judgment or order appealed or, in a civil
case, service of the notice of judgment and its entry if service is not made
on the party within the three day rule period in Rule 58(B) of the Ohio Rules
of Civil Procedure. Delaware County, Case No. 21 CAA 07 0036 5
{¶15} The filing of a timely notice of appeal is a prerequisite to establishing
jurisdiction in a court of appeals. Therefore, while in the general sense, this court has
jurisdiction to hear appeals in criminal cases, that jurisdiction must be invoked by the
timely filing of a notice of appeal. The failure to file a timely notice of appeal is a
jurisdictional requirement that cannot be ignored. State v. Alexander, 10th Dist. Nos.
05AP-129, 05AP-245, 2005-Ohio-5997 at ¶17.
{¶16} In the case sub judice, the trial court’s judgment entry denying Lockhart’s
application for post-conviction DNA testing pursuant to R.C. 2953.72 was filed May 10,
2021. Thirty days from May 10, 2021 would be June 9, 2021. Lockhart’s Notice of Appeal
was filed July 12, 2021, forty-two days after the trial court’s May 10, 2021 Judgment Entry
was filed.
{¶17} While Lockhart is entitled to a right of appeal, that right to appeal expired
when he failed to file a notice of appeal within the time required by App.R. 4(A). Therefore,
the court has no jurisdiction to entertain an appeal as of right from the denial of his motion
for postconvition DNA testing. State v. Alexander, supra at ¶19.
A motion for reconsideration filed in the trial court cannot extend time for filing an
appeal.
{¶18} The Supreme Court of Ohio has held that a request for reconsideration of a
final judgment at the trial court level is a nullity, as is any judgment or final order resulting
from such a motion. State ex rel. Pendell v. Adams Cty. Bd. of Elections, 40 Ohio St.3d
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[Cite as State v. Lockhart, 2021-Ohio-3912.]
COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. William B. Hoffman, J. Plaintiff-Appellee : Hon. Earle E. Wise, J. : -vs- : : Case No. 21 CAA 07 0036 JOHN C. LOCKHART : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Delaware County Court of Commo Pleas, Case No. 06-CRI- 01-0011
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: November 3, 2021
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
MELISSA A. SCHIFFEL JOHN C LOCKHART, JR. Delaware County Prosecutor #536014 BY: JACQUELINE J. RAPIER Allen-Oakwood Correctional Institution Assistant Prosecutor Box 4501 145 North Union Street, 3rd Floor Lima OH 45802 Delaware, OH 43015 Delaware County, Case No. 21 CAA 07 0036 2
Gwin, P. J.,
{¶1} Appellant John C. Lockhart [“Lockhart”] appeals from the May 10, 2021
judgment entry of the Delaware County Court of Common Pleas overruling his application
for post-conviction DNA testing.
Facts and Procedural History
{¶2} In 2006, Lockhart was indicted upon three counts of rape in violation of R.C.
2907.02(A)(1)(b) and three counts of gross sexual imposition in violation of R.C.
2907.05(A)(4) arising from his assaults of a 9-year-old child. After trial by jury, Lockhart
was found guilty as charged and sentenced to an aggregate term of life in prison. Lockhart
directly appealed from his convictions and sentences but did not challenge the life
sentence. State v. Lockhart, 5th Dist. Delaware No. 06CAA100080, 2008-Ohio-57, appeal
not allowed, 118 Ohio St.3d 1434, 2008-Ohio-2595, 887 N.E.2d 1203. This Court affirmed
Lockhart’s convictions and sentence. Id.
{¶3} In 2009, Lockhart filed a petition for habeas relief in the U.S. District Court
for the Southern District of Ohio which was denied and dismissed. Lockhart v. Welch, No.
2:09-CV-443, 2011 WL 378905 (S.D. Ohio Feb. 3, 2011).
{¶4} In 2011, Lockhart sought a writ of mandamus, which was denied by this
Court. State ex rel. Lockhart v. Whitney, 5th Dist. Delaware No. 10 CAD 12 0094, 2011-
Ohio-2023, ¶ 4. That judgment was affirmed by the Ohio Supreme Court. State ex rel.
Lockhart v. Whitney, 130 Ohio St.3d 95, 2011-Ohio-4896, 955 N.E.2d 994, ¶ 3.
{¶5} In 2012, Lockhart filed a motion to “correct status of illegal sentence.” The
motion was overruled, a decision we affirmed in State v. Lockhart, 5th Dist. Delaware No.
13 CAA 01 0007, 2013-Ohio-3441, ¶ 10, appeal not allowed, 137 Ohio St.3d 1473, 2014- Delaware County, Case No. 21 CAA 07 0036 3
Ohio-176, 2 N.E.3d 268. In that appeal, we found Lockhart’s original sentence was within
the sentencing guidelines and Lockhart’s argument was barred by res judicata. Id., 2013-
Ohio-3441, ¶ 19.
{¶6} In 2015, Lockhart attempted to challenge his sentence via a state habeas
petition, which was denied. State ex rel. Lockhart v. Shelton, 6th Dist. Lucas No. L-15-
1018, 2015-Ohio-1569, ¶ 10, affirmed sub nom. State ex rel. Lockhart v. Sheldon, 146
Ohio St.3d 468, 2016-Ohio-627, 58 N.E.3d 1124.
{¶7} In 2016, Lockhart filed a motion for resentencing which was denied by the
trial court. In 2018, Lockhart moved the trial court to shorten his sentence by “correcting
a clerical error.” That motion was overruled.
{¶8} In 2020, Lockhart appealed from the trial court’s denial of his motion to
“clarify his sentence,” arguing that the sentences for G.S.I. and rape were ordered to be
served concurrently, thus his indefinite sentence for rape should be four years to life
instead of ten years to life. The trial court overruled the motion by judgment entry dated
June 2, 2020. This Court affirmed the trial court’s decision. State v. Lockhart, 5th Dist.
Delaware No. 20 CAA 07 0027, 2021-Ohio-2418.
{¶9} The instant appeal arises from Lockhart’s March 25, 2021 application for
post-conviction DNA testing pursuant to R.C. 2953.72. Lockhart requested testing of one
item of underwear collected from the victim of the sex offense in 2005.
{¶10} In an entry filed May 10, 2021 the trial court denied the application finding
that Lockhart failed to establish that the requested DNA evidence would be outcome
determinative. Delaware County, Case No. 21 CAA 07 0036 4
{¶11} On May 24, 2021, Lockhart filed a Motion to Reconsider the trial court’s May
10, 2021 Judgment Entry. The trial court overruled Lockhart’s motion by Judgment Entry
filed June 18, 2021.
Assignments of Error
{¶12} “I. TRIAL COURT JUDGE DAVID GORMLEY, OF THE DELAWARE
COUNTY COURT OF COMMON PLEAS, REFUSES TO REVEAL WHOSE SALIVA IS
IN A VICTIM'S PANTIES, THAT THE STATE OF OHIO KNEW WAS IN THOSE PANTIES
OVER A YEAR PRIOR TO APPELLANT'S TRIAL.”
Jurisdiction
{¶13} In the case at bar, we must address the threshold issue of whether the
Notice of Appeal was timely filed. Even if a party does not raise the issue, this court must
address, sua sponte, whether there is a final appealable order ripe for review. State ex
rel. White vs. Cuyahoga Metro. Hous. Aut., 79 Ohio St.3d 543, 544, 1997-Ohio-366, 684
N.E.2d 72.
{¶14} An appeal as of right may be taken by the filing of a timely notice of appeal
with the clerk of the trial court in which the judgment was entered. App.R. 3(A). The only
jurisdictional requirement for an appeal as of right is the filing of the notice of appeal in a
timely manner. App.R. 4(A) states:
A party shall file the notice of appeal required by App.R. 3 within thirty
days of the later of entry of the judgment or order appealed or, in a civil
case, service of the notice of judgment and its entry if service is not made
on the party within the three day rule period in Rule 58(B) of the Ohio Rules
of Civil Procedure. Delaware County, Case No. 21 CAA 07 0036 5
{¶15} The filing of a timely notice of appeal is a prerequisite to establishing
jurisdiction in a court of appeals. Therefore, while in the general sense, this court has
jurisdiction to hear appeals in criminal cases, that jurisdiction must be invoked by the
timely filing of a notice of appeal. The failure to file a timely notice of appeal is a
jurisdictional requirement that cannot be ignored. State v. Alexander, 10th Dist. Nos.
05AP-129, 05AP-245, 2005-Ohio-5997 at ¶17.
{¶16} In the case sub judice, the trial court’s judgment entry denying Lockhart’s
application for post-conviction DNA testing pursuant to R.C. 2953.72 was filed May 10,
2021. Thirty days from May 10, 2021 would be June 9, 2021. Lockhart’s Notice of Appeal
was filed July 12, 2021, forty-two days after the trial court’s May 10, 2021 Judgment Entry
was filed.
{¶17} While Lockhart is entitled to a right of appeal, that right to appeal expired
when he failed to file a notice of appeal within the time required by App.R. 4(A). Therefore,
the court has no jurisdiction to entertain an appeal as of right from the denial of his motion
for postconvition DNA testing. State v. Alexander, supra at ¶19.
A motion for reconsideration filed in the trial court cannot extend time for filing an
appeal.
{¶18} The Supreme Court of Ohio has held that a request for reconsideration of a
final judgment at the trial court level is a nullity, as is any judgment or final order resulting
from such a motion. State ex rel. Pendell v. Adams Cty. Bd. of Elections, 40 Ohio St.3d
58, 60, 531 N.E.2d 713, 715(1988), citing Pitts v. Dept. of Transp., 67 Ohio St.2d 378,
381, 423 N.E.2d 1105(1981). Such a motion cannot be used to extend the time for filing
a notice of appeal. See Kauder v. Kauder, 38 Ohio St.2d 265, 313 N.E.2d 797(1974). Delaware County, Case No. 21 CAA 07 0036 6
These same principles have been extended to criminal cases. See Cleveland Heights v.
Richardson, 9 Ohio App.3d 152, 458 N.E.2d 901(8th Dist. 1983); Brook Park v. Necak,
30 Ohio App.3d 118, 506 N.E.2d 936 (8th Dist. 1986); State v. Garcia, 10th Dist. No.
94APA11-1646, 1995 WL 259168 (May 2, 1995); State v. Jones, 10th Dist. No. 86AP-
779, 1987 WL 12712 (June 11, 1987); State v. Matthews, 4th Dist. No., 00CA0009, 2000-
Ohio-1994; State v. Beaudry, 6th Dist. No. L-01-1288, 2001 WL 1346113 (Nov 2, 2001);
State v. Blackwood, 8th Dist. No. 83208, 2004-Ohio-2160; State v. Kramer, 10th Dist. No.
03AR-633, 2004-Ohio-2646.
{¶19} Lockhart’s motion for reconsideration was a nullity and could not extend the
30-day deadline for filing an appeal from the trial court’s May 10, 2021 Judgment Entry.
“Because a judgment entered on a motion for reconsideration is also a nullity, a party
cannot appeal such a judgment.” State v. Leach, 12th Dist. Clermont No. CA2004-02-
011, 2005-Ohio-2370, citing State v. Vanelli, 9th Dist. Wayne No. 02CA0066, 2003-Ohio-
2717, ¶ 8. “Rather, the party must appeal from the original decision.” Hamilton v. Ebbing,
12th Dist. Butler No. CA2011-01-001, 2012-Ohio-2250, ¶ 17.
{¶20} Because Lockhart did not timely file his notice of appeal of the May 10, 2021
Judgment Entry, and because the June 18, 2021 decision on Lockhart’s motion for
reconsideration was not a final appealable order, this court lacks jurisdiction over the
matter. See, State v. Taggart, 12th Dist. Butler No. 2020-11-117, 2021-Ohio-1350, citing
HSBC Mtge. v. Ballard, 12th Dist. Butler No. CA2011-05-088, 2012-Ohio-2251. Delaware County, Case No. 21 CAA 07 0036 7
{¶21} Based upon the foregoing analysis, this appeal is hereby dismissed.
By Gwin, P.J.,
Hoffman, J., and
Wise, Earle, J., concur