State v. Powell

2022 Ohio 1724

Opinion

[Cite as State v. Powell, 2022-Ohio-1724.]

IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT TRUMBULL COUNTY

STATE OF OHIO, CASE NOS. 2022-T-0040 2022-T-0041 Plaintiff-Appellee, Criminal Appeals from the -v- Court of Common Pleas

LEWIS C. POWELL, III, Trial Court Nos. 2018 CR 0998 Defendant-Appellant. 2019 CR 0675

MEMORANDUM OPINION

Decided: May 23, 2022 Judgment: Appeals dismissed

Dennis Watkins, Trumbull County Prosecutor, and Ryan J. Sanders, Assistant Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH 44481 (For Plaintiff-Appellee).

Rhys B. Cartwright-Jones, 42 North Phelps Street, Youngstown, OH 44503 (For Defendant-Appellant).

MARY JANE TRAPP, J.

{¶1} On May 4, 2022, appellant, through counsel, filed motions for leave to file a

delayed appeal pursuant to App.R. 5(A) in Trumbull County C.P. No. 2018 CR 0998 and

Trumbull County C.P. No. 2019 CR 0675. No notice of appeal was filed with the trial court

in either trial court number.

{¶2} Attached to the motions are two trial court entries: a July 13, 2020

sentencing entry in 2018 CR 0998 and a December 31, 2019 sentencing entry in 2019

CR 0675. {¶3} Appellee, the state of Ohio, filed responses in opposition to appellant’s

motions on May 12, 2022.

{¶4} App.R. 5(A) provides:

{¶5} “(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:

{¶6} “(a) Criminal proceedings; * * *

{¶7} “(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.)

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

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

with this court. See State v. Farhat, 11th Dist. Portage No. 2021-P-0087, 2021-Ohio-

3487; State v. Anderson, 11th Dist. Lake No. 2019-L-169, 2020-Ohio-735; State v. Fisher,

46 Ohio App.2d 279 (1975).

{¶9} Thus, appellant’s motions are overruled, and the appeals are dismissed.

Case Nos. 2022-T-0040, 2022-T-0041 {¶10} We note that appellant is not barred from filing new motions for leave to file

a delayed appeal along with notices of appeal that comply with the Ohio Rules of

Appellate Procedure and the local rules of this court.

THOMAS R. WRIGHT, P.J.,

JOHN J. EKLUND, J.,

concur.

Case Nos. 2022-T-0040, 2022-T-0041