[Cite as State v. Ronny, 2016-Ohio-3448.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 102968
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
EMMETT RONNY DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-14-582463-B
BEFORE: Boyle, J., Keough, P.J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: June 16, 2016 ATTORNEY FOR APPELLANT
Tyresha Brown-O’Neal 614 W. Superior Avenue Suite 1144 Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty Cuyahoga County Prosecutor BY: Oscar E. Albores Assistant County Prosecutor Justice Center, 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 MARY J. BOYLE, J.:
{¶1} Defendant-appellant, Emmett Ronny, appeals his conviction, raising the
following three assignments of error:
I. The convictions are against the manifest weight and sufficiency of the evidence.
II. The trial court erred when it allowed the state of Ohio to call Sergeant Phillip Christopher.
III. The trial court erred when it allowed the state to call Mr. Royes as a court witness.
{¶2} Finding no merit to the appeal, we affirm.
I. Procedural History and Facts
{¶3} On January 12, 2014, Demetrius Burkes was shot in the stomach at his
apartment. Ronny, along with codefendant Alexander Royes, was arrested and indicted
on several charges related to the incident. Specifically, Ronny was indicted on eight
counts: attempted murder, two counts of aggravated burglary, two counts of felonious
assault, two counts of aggravated robbery, and having weapons while under disability.
All of the counts carried one- and three-year firearm specifications and seven of the
counts carried a notice of prior conviction specification. Ronny pleaded not guilty to the
charges and elected to have the having weapons while under disability charge and notice
of prior conviction specification tried to the bench. The remaining charges were heard
by a jury where the following evidence was presented. A. The Shooting
{¶4} Burkes and his former fiancée, Xaviera Weems, first met Royes in October
2013. Up until the time of the shooting, Burkes sold marijuana to Royes on an almost
daily basis. According to both Burkes and Weems, Royes introduced himself as “Jay,”
and they only knew him by this name.
{¶5} On the day of the shooting, Burkes was home at his second-floor apartment
with Weems and another friend. At approximately 1:00 p.m., Weems responded to a
knock on the door while Burkes was in the bedroom sleeping. According to Weems,
Royes was at the door. Weems answered the door, opening it halfway and telling Royes
that “there’s nothing going on, nobody is up.” While speaking to Royes, another person
— who Weems later identified as Ronny — ran up the stairs and pushed the door open,
forcing Weems to back up into the apartment.
{¶6} Weems testified that she observed Ronny for “a few minutes” — that he
was wearing a knit ski hat, gray scarf, and a blue and red coat. She further testified that
when she first saw Ronny, his hands were in his pocket but then he pulled out a gun and
asked “where’s it at?” Around this same time, Burkes awoke from the commotion and
then exited the bedroom, observing Royes against the wall and a short male in front of
Weems. In the process of pulling Weems out of the male’s way, Burkes was shot in the
stomach. According to Weems, she pushed Ronny and “was like what did you do that
for, why did you do that,” and then she dropped to the floor to help Burkes, who had
fallen. {¶7} Weems called 911. Upon the arrival of Cleveland Heights police officer
Robert Butler, Weems provided a physical description of Royes and the shooter,
describing the shooter as “5 feet 5 inches and dark-skinned black male with acne.”
Weems retrieved Burkes’s cell phone and provided Officer Butler with “Jay’s” phone
number. The police matched the number to Alexander Royes, who also fit the physical
description provided by Weems.
{¶8} The police arrested Royes the following day.
B. Royes Implicates Thirst; Police Determine Ronny is Thirst
{¶9} Cleveland Heights police detective Michael Reese led the investigation into
the shooting of Burkes. Det. Reese testified that he interviewed Royes, who provided
the name of the second suspect by his street name — “Thirst.” Det. Reese and his team
interviewed approximately 15 people to determine the identity of Thirst and ultimately
determined that Thirst was Ronny. Det. Reese further testified that Ronny matched the
physical description of the shooter provided at the scene on January 12.
C. Royes Testifies Thirst Shot Burkes
{¶10} The state called Royes as a witness in its case in chief. After Royes
refused to answer the state’s questions, the trial court granted the state’s motion to declare
him a court witness. Royes, who had been tried earlier and acquitted of all the charges,
had testified in his own trial, placing himself at the scene on January 12, 2014. But
according to Royes, he “had no clue what was going to happen that day.” Royes further
acknowledged that he previously testified that Thirst shot Burkes. Royes stated, however, that he did not know Ronny and that Ronny was not Thirst. According to
Royes, Thirst was another person named Jaylin. Royes testified that he had seen Jaylin
at a party the night before the shooting but that they never spoke. According to Royes,
he next saw Jaylin while walking into Burkes’s building and that Jaylin then forced
himself into the apartment and shot Burkes. Royes testified that he ran from the
apartment, fleeing in his car and driving to Richmond Heights, Euclid, and then to the
Morris Black Apartments, a housing project in Cleveland.
D. Ronny’s Cell-Phone Records Place His Phone Near the Shooting and Traveling Same Route as Royes after Shooting
{¶11} Through his investigation, Det. Reese discovered the cell phone number
used by Ronny, and after securing a search warrant, requested data records associated
with the cell phone from Verizon. The state offered the testimony of Todd Wiles, a
crime analyst with the Cleveland Police Department, who analyzed and mapped Ronny’s
cell phone records of January 12, 2014 (the day of the shooting), between the hours of
11:54 a.m. and 2:06 p.m. According to Wiles’s testimony, the data associated with an
incoming call at 12:50:56 indicated that the phone utilized a cell tower located
approximately one and one-half miles from the crime scene. The subsequent activity on
the phone also correlated with the geographical locations that Royes placed himself in
following the shooting.
E. Ronny Identifies Himself as Thirst in Making A Call Through the Jail Phone System {¶12} The state introduced testimony establishing that Ronny referred to himself
as Thirst. Specifically, Sergeant Phillip Christopher, who works in the Cuyahoga
County Sheriff’s Department and supervises jail visitation, testified that Ronny identified
himself as Thirst when first placing a phone call through the inmate phone system. The
state played the call for the jury to hear at trial.
F. Eyewitness Identification
{¶13} On January 23, 2014, after the police identified Ronny as a suspect, a photo
lineup consisting of six photos was presented to Weems, who identified Ronny (along
with another person) as a “possible” suspect in the first viewing. Upon being showed a
second viewing, the blind administrator noted “strongest” regarding Weems’s
identification of Ronny.
{¶14} On March 24, 2014, while Burkes was still in the hospital, Burkes made an
identification of Ronny as being at the scene; Burkes, however, identified Royes as the
shooter. Burkes later contacted police in August 2014 and provided a new statement,
indicating that Ronny was the shooter and that he was heavily medicated when he
provided his first identification. Burkes acknowledged that he had observed a photo of
Ronny online in an article about the case prior to giving his amended statement in August.
{¶15} Burkes and Weems both testified at trial that they were 100 percent certain
that Ronny was the shooter.
G. Neutral Witness Places Royes and Ronny Together the Night Before Shooting {¶16} The state offered the testimony of Shynice Arthus, who testified that Ronny
and Royes were both at her house the night before the shooting. Specifically, Arthus
testified that she had a “kickback” party on January 11, 2014, to celebrate her 21st
birthday. Arthus testified that Ronny was at the party and that “we called him Thirst.”
She further testified that Royes was at the party too.
H. Verdict and Sentence
{¶17} The jury found Ronny guilty on all the counts except aggravated robbery as
contained in Count 6. The trial court further found Ronny guilty of having weapons
while under disability and the notice of prior conviction specification. At sentencing,
the trial court merged the two felonious assault counts with the attempted murder count,
and merged the aggravated burglary count with the other aggravated burglary count.
The state elected to proceed on Count 1 (attempted murder) and Count 3 (aggravated
burglary in violation of R.C. 2911.11(A)(1)). The trial court ultimately imposed an
aggregate sentence of 28 years in prison on all the counts.
II. Law and Analysis
A. Jurisdiction
{¶18} Before reaching the merits of Ronny’s appeal, we initially address the issue
raised sua sponte by the dissent regarding this court’s jurisdiction to hear the appeal. {¶19} This court sua sponte granted leave for a delayed appeal after determining
that Ronny had filed an untimely notice of appeal. According to the dissent, “[t]here is
no authority for an appellate court to sua sponte grant leave for a delayed appeal in the
Rules of Appellate Procedure.” The dissent, however, improperly applies App.R. 5(A)
and downplays the discretion vested in an appellate court to grant leave to file a delayed
appeal in criminal proceedings. App.R. 5(A)(1) recognizes only three classes of cases
where a delayed appeal may be taken, which includes criminal proceedings. With
respect to an appeal from a criminal proceeding, the rule expressly states that “[a]fter 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 * * *.” While App.R. 5(A)(2) describes the manner as to how a party
shall file for leave, that section does not prohibit a court from granting leave sua sponte
under App.R. 5(A)(1).
{¶20} Contrary to the dissent’s assertion, the Ohio Supreme Court has not declared
that an appellate court lacks jurisdiction to sua sponte grant leave for a delayed appeal
after a party has filed its untimely notice of appeal in a criminal proceeding. The
dissent’s conclusion that Ronny’s failure to strictly comply with App.R. 5 barred this
court from sua sponte granting leave is not supported by State ex rel. McGinty v. Eighth
Dist. Court of Appeals, 142 Ohio St.3d 100, 2015-Ohio-937, 28 N.E.3d 88. That case
does not even discuss App.R. 5. Nor does McGinty render our court’s previous decisions
that have allowed delayed appeals under App.R. 5, even in the absence of strict compliance with App.R. 5(A), “no longer * * * valid.”
{¶21} Conversely, aside from our own district recognizing that strict compliance
with App.R. 5(A) is not necessary for the court to grant leave for a delayed appeal, at
least one other appellate district has recognized the same. State v. Alexander, 10th Dist.
Franklin Nos. 05AP-192 and 05AP-245, 2005-Ohio-5997, ¶ 25 (“Although the
procedures set out in App.R. 3, 4, and 5 were not followed in this case, and no motion for
leave to appeal was filed at the time the notice of appeal was filed, we conclude that
appellant has adequately set forth reasons for the failure to perfect an appeal as of right.”).
{¶22} Accordingly, because this court granted Ronny leave to file his delayed
appeal, we have jurisdiction to decide the merits of the appeal as set forth in App.R. 5.
B. Sufficiency and Weight of the Evidence
{¶23} In his first assignment of error, Ronny argues that the state’s evidence
against him was not sufficient and that his convictions were against the manifest weight
of the evidence. We disagree.
{¶24} When an appellate court reviews a record upon a sufficiency challenge,
“‘the relevant inquiry is whether, after viewing the evidence in a light most favorable to
the prosecution, any rational trier of fact could have found the essential elements of the
crime proven beyond a reasonable doubt.’” State v. Leonard, 104 Ohio St.3d 54,
2004-Ohio-6235, 818 N.E.2d 229, ¶ 77, quoting State v. Jenks, 61 Ohio St.3d 259, 574
N.E.2d 492 (1991).
{¶25} In reviewing a claim challenging the manifest weight of the evidence, [t]he question to be answered * * * is whether there is substantial evidence upon which a jury could reasonably conclude that all the elements have been proved beyond a reasonable doubt. In conducting this review, we must examine the entire record, weigh the evidence and all reasonable inferences, consider the credibility of the witnesses, and determine whether the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.
(Emphasis sic. Internal quotes and citations omitted.) Leonard at ¶ 81.
{¶26} Aside from broadly arguing that the state failed to present sufficient
evidence to sustain the convictions, Ronny does not identify any element that the state
failed to prove other than identity. Because Ronny does not contend that the state failed
to establish any of the other elements of the crimes for which he was convicted, we limit
our analysis to whether the evidence was sufficient to establish, beyond a reasonable
doubt, that Ronny was the shooter.
{¶27} We find that the record establishes the identity of Ronny and that any
rational trier of fact could have found that Ronny was the shooter. Indeed, the state
presented the testimony of two eyewitnesses who identified Ronny in court as the person
who shot Burkes. To the extent that Ronny claims that their identifications were not
credible, we do not consider credibility when reviewing a verdict for sufficiency of the
evidence. State v. Williams, 8th Dist. Cuyahoga No. 98528, 2013-Ohio-1181, ¶ 27.
Rather, we “examine the evidence admitted at trial to determine whether such evidence, if
believed, would convince the average mind of the defendant’s guilt beyond a reasonable
doubt.” (Emphasis added.) Jenks, 61 Ohio St.3d at 273, 574 N.E.2d 492. {¶28} Further, apart from the eyewitness testimony, the state also offered
considerable circumstantial evidence that linked Ronny to the crimes. Royes implicated
Thirst as the shooter. The state established through Ronny’s own admission in a jail
call, as well as through a neutral witness, that Ronny was known as Thirst. Additionally,
the state presented the cell phone records that placed Ronny in the vicinity of the crime
scene as well as in the same locations as Royes following the shooting.
{¶29} Construing the evidence in a light most favorable to the state, we conclude
that a rational jury could have determined, beyond a reasonable doubt, that Ronny was the
shooter.
{¶30} Turning to Ronny’s manifest weight of the evidence challenge, we likewise
find that the jury did not lose its way. While Burkes’s identification may have been
more questionable, given his significantly less time to observe Ronny, Weems’s
identification did not suffer from the same deficiencies. Moreover, the state did not rely
solely on eyewitness identification testimony in this case. Ronny completely ignores the
other circumstantial evidence presented by the state that linked him to the crimes. As
for Royes testifying at trial that Ronny was a different Thirst and not the shooter, the jury
easily could have disregarded Royes’s testimony as not credible. Royes clearly did not
want to implicate Ronny. Notably, Royes also testified that he did not know Ronny and
that he had never seen him prior to the court proceedings, yet another neutral witness
placed the two at the same party the night before the shooting. {¶31} After examining the entire record, we cannot say that the jury lost its way or
created a manifest miscarriage of justice in convicting Ronny.
{¶32} The first assignment of error is overruled.
C. Testimony of Sgt. Christopher
{¶33} In his second assignment of error, Ronny argues that the trial court erred in
allowing the testimony of Sgt. Christopher, who established that Ronny identified himself
as Thirst in his jail calls. Ronny contends that “he had already stipulated to being called
‘Thirst’” and therefore the admission of this testimony, which allowed the jury to know
that Ronny had been in jail, was “unduly prejudicial.” We disagree.
{¶34} “The admission or exclusion of relevant evidence rests within the sound
discretion of the trial court.” State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343 (1987),
paragraph two of the syllabus. Even relevant evidence may be excluded under Evid.R.
403(A), if its “probative value is substantially outweighed by the danger of unfair
prejudice, of confusion of the issues, or of misleading the jury.” See also State v.
Combs, 62 Ohio St.3d 278, 284, 581 N.E.2d 1071 (1991).
{¶35} A trial court will be found to have abused its discretion when its decision is
contrary to law, unreasonable, not supported by the evidence, or grossly unsound. See
State v. Boles, 187 Ohio App.3d 345, 2010-Ohio-278, 932 N.E.2d 345, ¶ 16-18 (2d Dist.),
citing Black’s Law Dictionary 11 (8th Ed.Rev.2004). Further, this abuse of discretion
must have materially prejudiced the defendant. State v. Lowe, 69 Ohio St.3d 527, 532, 634 N.E.2d 616 (1994), citing State v. Maurer, 15 Ohio St.3d 239, 473 N.E.2d 768
(1984).
{¶36} Contrary to Ronny’s assertion, there was no stipulation that his nickname
was Thirst. While Ronny’s defense counsel conceded in his opening statement that
Ronny’s nickname was Thirst, defense counsel’s statement is not evidence. See State v.
Copeland, 8th Dist. Cuyahoga No. 102952, 2016-Ohio-1537, ¶ 18. Nor did Ronny agree
to a stipulation of the fact. Because the state’s case focused around Royes’s statement
that Thirst was the shooter, evidence linking Ronny with the nickname Thirst was crucial
to the prosecution. We cannot say the trial court abused its discretion in allowing this
evidence.
{¶37} The second assignment of error is overruled.
D. Designation of Royes as a Court Witness
{¶38} In his final assignment of error, Ronny argues that the trial court erred in
allowing the state to call Royes as a state witness and allowing the state “to engage in
direct examination” of Royes. This argument has no merit.
{¶39} Evid.R. 614 authorizes the court to call a witness whom a party might
otherwise call on the party’s “suggestion” that the witness would then recant another prior
statement favorable to that party. State v. Arnold, 189 Ohio App.3d 507,
2010-Ohio-5379, 939 N.E.2d 218, ¶ 43 (2d Dist.), citing State v. Kiser, 6th Dist.
Sandusky No. S-03-028, 2005-Ohio-2491. Evid.R. 614(A) provides: “[t]he court may, on its own motion or at the suggestion of a party, call witnesses, and all parties are
entitled to cross-examine witnesses thus called.”
{¶40} Upon taking the stand, Royes refused to answer any questions, indicating
that he was invoking his Fifth Amendment right against self-incrimination. Royes,
however, had been tried nine days earlier and acquitted of the charges heard before the
jury. The trial court subsequently found Royes not guilty of the having weapons while
under disability count. Based on Royes being acquitted of all the charges and double
jeopardy attaching, the trial court explained that there was no impediment to his
testifying. Royes nonetheless refused to testify. At that point, the trial court granted
the state’s motion to declare Royes a court witness in order to cross-examine him on his
previous testimony that he gave in his own trial.
{¶41} The purpose of calling a witness as a court’s witness is to allow for a proper
determination in a case where a witness is reluctant or unwilling to testify. State v.
Curry, 8th Dist. Cuyahoga No. 89075, 2007-Ohio-5721, ¶ 18. “A witness whose
appearance is important to the proper determination of the case, but who appears to be
favorable to the other party, is a principal candidate for application of Evid.R. 614(A).”
State v. Croom, 2d Dist. Montgomery No. 25094, 2013-Ohio-3377, ¶ 18. A trial court
does not abuse its discretion in calling a witness as a court’s witness “‘when the witness’s
testimony would be beneficial to ascertaining the truth of the matter and there is some
indication that the witness’s trial testimony will contradict a prior statment[.]’” State v. Arnold, 189 Ohio App.3d 507, 2010-Ohio-5379, 939 N.E.2d 218, ¶ 44 (2d Dist.), quoting
State v. Schultz, 11th Dist. Lake No. 2003-L-156, 2005-Ohio-345, ¶ 29.
{¶42} We cannot say that the trial court abused its discretion in calling Royes as a
court witness. Royes was an eyewitness to the shooting who previously testified as to
the identity of the shooter. His appearance was important to the proper determination of
the case and his clear reluctancy to testify against Ronny made him a principal candidate
for application of Evid.R. 614(A). To the extent that Ronny complains that he was
somehow prejudiced by the prosecutor asking questions that seemed more like “direct
examination” than “cross-examination,” we find no merit to this baseless claim. As
countered by the state, Evid.R. 614(A) entitles parties to cross-examine a witness; the
rule, however, does not impose a blanket requirement that they must. While the
prosecutor’s questioning of Royes involved a mixture of leading as well as nonleading
questions, we find no error. We further find no basis to Ronny’s unsupported claim that
declaring Royes as a court witness somehow violated his due process rights.
{¶43} The third assignment of error is overruled.
{¶44} Judgment affirmed.
It is ordered that appellee recover from appellant the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. The defendant’s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
MARY J. BOYLE, JUDGE
KATHLEEN ANN KEOUGH, P.J., CONCURS; SEAN C. GALLAGHER, J., DISSENTS (SEE SEPARATE OPINION)
SEAN C. GALLAGHER, J., DISSENTING:
{¶45} I respectfully dissent. We lack jurisdiction to entertain the merits of the
current appeal. The notice of appeal was filed untimely and without a motion for leave
to file the delayed appeal pursuant to App.R. 5(A). As a result, I would dismiss instead
of addressing the merits of the cursory arguments presented in the untimely appeal.
{¶46} On March 12, 2015, the trial court entered the final sentencing entry, which
included the assignment of appellate counsel. On April 28, Ronny filed his notice of
appeal, well outside the 30-day time frame in which an appeal as a matter of right may be
filed. Our jurisdiction in a direct appeal from a criminal case is invoked through the
filing of an appeal within 30 days of the final appealable order. In re H.F., 120 Ohio
St.3d 499, 2008-Ohio-6810, 900 N.E.2d 607, ¶ 17; App.R. 4(A).
{¶47} In the absence of a timely appeal, an appellant may invoke appellate
jurisdiction by filing a motion for a delayed appeal pursuant to App.R. 5(A). A motion for delayed appeal is a necessary prerequisite to invoking an appellate court’s jurisdiction.
State v. Saunders, 8th Dist. Cuyahoga No. 96643, 2012-Ohio-104, ¶ 4 (failure to file a
motion for delayed appeal deprives an appellate court of jurisdiction to entertain the
appeal); see also State v. Holland, 8th Dist. Cuyahoga No. 89667, 2008-Ohio-920, ¶ 4;
State v. Lopez, 8th Dist. Cuyahoga No. 85306, 2005-Ohio-3711, ¶ 15; State v. Molina, 8th
Dist. Cuyahoga No. 83166, 2004-Ohio-1110, ¶ 11; State v. Thompson, 8th Dist.
Cuyahoga No. 82274, 2003-Ohio-4405, ¶ 3; State v. Delgado, 8th Dist. Cuyahoga No.
79642, 2002-Ohio-2609, ¶ 23; State v. Chapman, 8th Dist. Cuyahoga No. 79812,
2002-Ohio-1081.
{¶48} The proper procedure to perfect a delayed appeal is not complicated. In the
motion for a delayed appeal, the appellant is required to explain the reason for the failure
to timely appeal. App.R. 5(A)(2); Cleveland v. Black, 8th Dist. Cuyahoga No. 82457,
2003-Ohio-4197, ¶ 14. Concurrently with that motion, the party must also file a notice
of appeal with the clerk of the trial court and a copy of the same with the court of appeals.
App.R. 5(A)(2); State v. Bell, 11th Dist. Trumbull No. 2010-T-0037, 2010-Ohio-1798, ¶
12. “Compliance with App.R. 5(A) is mandatory and jurisdictional.” State v. Parks, 8th
Dist. Cuyahoga No. 65464, 1994 Ohio App. LEXIS 2166, *3 (May 19, 1994), citing State
v. Wallace, 43 Ohio St.2d 1, 330 N.E.2d 697 (1975); see also State v. Fisher, 46 Ohio
App.2d 279, 349 N.E.2d 327 (10th Dist.1975) (motion for delayed appeal must be filed
concurrently with notice of appeal or court is without jurisdiction to review appeal). Only then can the appellate court exercise its discretion in determining whether to accept
the delayed appeal or issue any order in furtherance of the appeal.
{¶49} No App.R. 5(A) motion was filed with this court. Instead, Ronny appealed
a nunc pro tunc entry issued on April 24 meant to correct a minor typographical error in
the March 12 final sentencing entry. It has long been held that issuing a nunc pro tunc
sentencing entry does not restart the appellate clock. Whitlach Invest. Corp. v. Am.
Trading & Invest. Corp., 9th Dist. Summit No. 24294, 2009-Ohio-203, ¶ 9. A nunc pro
tunc entry merely corrects and retroactively replaces the prior entry to memorialize what
actually occurred. Id.; State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d
142, ¶ 19; State v. Dowdy, 8th Dist. Cuyahoga No. 96642, 2012-Ohio-2382, ¶ 8; State v.
Blankenship, 4th Dist. Ross No. 13CA3364, 2013-Ohio-5261, ¶ 7; In re Petition for
Inquiry into Certain Practices, 150 Ohio St. 393, 398, 83 N.E.2d 58 (1948). The time
for appeal runs from the original entry, not the filing date of the nunc pro tunc. Lester at
paragraph two of the syllabus. In this case, a final judgment of conviction was entered
pursuant to Crim.R. 32(C) on March 12, 2015, and Ronny was provided his appellate
rights and appellate counsel. The right to appeal was triggered by the original sentencing
entry.
{¶50} Upon initial review, after having to reinstate the dismissed appeal because
Ronny failed to file a praecipe in accordance with Loc.App.R. 9(B), this court
improvidently, and sua sponte, granted leave to file a delayed appeal after the
jurisdictional irregularity was identified by the court, not the parties. Although this process of sua sponte granting leave to appeal after the fact seems expedient, this court
was without jurisdiction to issue such an order.
{¶51} An appellate court, much less any court, cannot create its own jurisdiction.
Courts of appeal only have “such jurisdiction as may be provided by law.” Ohio
Constitution, Article IV, Section 3(B)(2). “[W]hile 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.” State v. Mansaray, 8th Dist. Cuyahoga No. 90647,
2009-Ohio-1237, ¶ 13. “The failure to file a timely notice of appeal is a jurisdictional
requirement that cannot be ignored.” Id.; see also State v. Starcic, 8th Dist. Cuyahoga
No. 72742, 1998 Ohio App. LEXIS 2411, *6-7 (June 4, 1998) (string citing cases stating
appellate courts lack jurisdiction over untimely appeals). Because the original time to
appeal had expired and no App.R. 5(A) motion for delayed appeal was filed, we lacked
jurisdiction. Parks, 8th Dist. Cuyahoga No. 65464, 1994 Ohio App. LEXIS 2166, at *3;
Black, 8th Dist. Cuyahoga No. 82457, 2003-Ohio-4197, at ¶ 14; State v. Ellis, 5th Dist.
Guernsey No. 2007-CA-46, 2008-Ohio-7002, ¶ 10. (“In a criminal case, where the
defendant has failed to meet the time requirements of App.R. 4(A), the unqualified right
to an appeal set out in App.R. 3(A) is extinguished and an appeal may be taken only by
leave of court in compliance with App.R. 5(A).”)
{¶52} Further, this court’s authority to issue any order in furtherance of an appeal
is entirely dependent on the proper invocation of the court’s jurisdiction in the first place.
State ex rel. McGinty v. Eighth Dist. Court of Appeals, 142 Ohio St.3d 100, 2015-Ohio-937, 28 N.E.3d 88, ¶ 13. A court lacking jurisdiction over the appeal also
lacks jurisdiction to issue any order to confer jurisdiction upon itself. In McGinty, this
court attempted to issue a stay of the trial court proceedings after an appeal was filed.
The Ohio Supreme Court unambiguously held that an appellate court may not exercise
judicial power unless its jurisdiction was properly invoked in the first place. Id.
Because the state attempted to appeal an interlocutory order for which this court lacked
jurisdiction, there was no jurisdiction to exercise any judicial power. Id. at ¶ 27. The
same principle applies to the current case in which this court exercised judicial power to
sua sponte grant leave for a delayed appeal despite the lack of jurisdiction over the appeal
filed.
{¶53} Over the years, a practice has evolved in which some panels from this court
granted leave for a delayed appeal despite the failure to comply with App.R. 5(A), citing
to the interests of justice. See, e.g., Dowdy, 8th Dist. Cuyahoga No. 96642,
2012-Ohio-2382, at ¶ 8; State v. Foster, 8th Dist. Cuyahoga No. 59423, 1991 Ohio App.
LEXIS 5465, *2 (Nov. 14, 1991); State v. Richardson, 8th Dist. Cuyahoga No. 59804,
1992 Ohio App. LEXIS 135, *3 (Jan. 16, 1992); State v. Westerfield, 8th Dist. Cuyahoga
No. 38122, 1978 Ohio App. LEXIS 8554, *2 (Dec. 28, 1978). Those decisions no longer
remain valid in light of the Ohio Supreme Court’s mandate. McGinty, 142 Ohio St.3d
100, 2015-Ohio-937, 28 N.E.3d 88, at ¶ 13. These aberrant decisions conflict with the
longstanding approach to appellate jurisdiction as recognized by this and other courts: the
failure to timely perfect a criminal appeal or file a motion for a delayed appeal is a jurisdictional limitation that requires immediate dismissal of the appeal. See, e.g., State
v. Edwards, 157 Ohio St. 175, 181, 105 N.E.2d 259 (1952) (motion for delayed appeal
was only remedy to perfect an untimely appeal); State v. Blackwood, 8th Dist. Cuyahoga
No. 83208, 2004-Ohio-2160, ¶ 4; Chapman, 8th Dist. Cuyahoga No. 79812,
2002-Ohio-1081; State v. Johnson, 8th Dist. Cuyahoga No. 91567, 2009-Ohio-3088, ¶ 3,
fn. 1; Cleveland v. Leisinger, 8th Dist. Cuyahoga Nos. 55476, 55477, 55478, 55479,
55480, 55481, and 55482, 1989 Ohio App. LEXIS 2217,*4-5 (June 8, 1989); State v.
Snyder, 8th Dist. Cuyahoga No. 39946, 1979 Ohio App. LEXIS 11742, *2 (Nov. 29,
1979); State v. Harvey, 68 Ohio App.2d 170, 171, 428 N.E.2d 437 (8th Dist.1980); State
v. Watson, 11th Dist. Trumbull No. 2015-T-0066, 2015-Ohio-2904, ¶ 11-12; Thorpe v.
Ohio State Warden, 10th Dist. Franklin No. 04AP-557, 2004-Ohio-6983, ¶ 5-6; In re
T.B., 9th Dist. Summit No. 23990, 2008-Ohio-2026, ¶ 8; State v. Haymon, 5th Dist. Stark
No. 2005CA00163, 2006-Ohio-3296, ¶ 11.
{¶54} In the instant case, this court sua sponte granted Ronny leave to file an
appeal without the defendant ever complying with App.R. 5(A). As this court has
recognized, an appellant must comply with App.R. 5(A) as a jurisdictional prerequisite
and App.R. 5(A) contemplates the motion being filed concurrently with the notice of
appeal. Parks, 8th Dist. Cuyahoga No. 65464, 1994 Ohio App. LEXIS 2166, at *3; State
v. Thurman, 8th Dist. Cuyahoga No. 103578, 2016-Ohio-3064, ¶ 4 (state failed to file the
motion for leave concurrent with the notice of appeal and therefore the trial court lacked
jurisdiction to grant the belated motion); State ex rel. Steffen v. Judges of the Court of Appeals for the First Appellate Dist., 126 Ohio St.3d 405, 2010-Ohio-2430, 934 N.E.2d
906, ¶ 27. There is no authority for an appellate court to sua sponte grant leave for a
delayed appeal in the Rules of Appellate Procedure. See App.R. 5(A). Accordingly,
this court lacks jurisdiction, and the appeal should be dismissed.