State v. Weber

2013 Ohio 1005

• Court: Ohio Court of Appeals
• Decided: March 18, 2013
• Docket: 2013-L-004
• Status: Published

Opinion

[Cite as State v. Weber, 2013-Ohio-1005.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

LAKE COUNTY, OHIO

STATE OF OHIO, : MEMORANDUM OPINION

Plaintiff-Appellee, :

-vs- : CASE NO. 2013-L-004

JOSEPH T. WEBER, :

Defendant-Appellant. :

Civil Appeal from the Court of Common Pleas, Case No. 10 CR 000507.

Judgment: Appeal dismissed.

Charles E. Coulson, Lake County Prosecutor, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee).

Joseph T. Weber, pro se, PID: A594653, Trumbull Correctional Institution, P.O. Box 901, Leavittsburg, OH 44430-0901 (Defendant-Appellant).

CYNTHIA WESTCOTT RICE, J.,

{¶1} On January 11, 2013, appellant, Joseph T. Weber, pro se, filed a notice of

appeal from a December 11, 2012 judgment of the Lake County Court of Common

Pleas dismissing his petition for post-conviction relief.

{¶2} Under App.R. 4(A), appellant’s notice of appeal was due to be filed no

later than Thursday, January 10, 2013, which was not a holiday or a weekend. Thus,

his appeal filed on January 11, 2013, was untimely.

{¶3} App.R. 4(A) states: {¶4} “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.”

{¶5} Loc.R. 3(D)(2) of the Eleventh District Court of Appeals provides:

{¶6} “In the filing of a Notice of Appeal in civil cases in which the trial court clerk

has not complied with Ohio Civ.R. 58(B), and the Notice of Appeal is deemed to be filed

out of rule, appellant shall attach an affidavit from the trial court clerk stating that service

was not perfected pursuant to Ohio App.R. 4(A). The clerk shall then perfect service

and furnish this Court with a copy of the appearance docket in which date of service has

been noted. Lack of compliance shall result in the sua sponte dismissal of the appeal

under Ohio App.R. 4(A).” (Emphasis sic.)

{¶7} Here, appellant has not complied with the thirty-day rule set forth in App.R.

4(A) nor has he alleged that there was a failure by the trial court clerk to comply with

Civ.R. 58(B). The time requirement is jurisdictional in nature and may not be enlarged

by an appellate court. State ex rel. Pendell v. Adams Cty. Bd. of Elections, 40 Ohio

St.3d 58, 60 (1988); App.R. 14(B).

{¶8} Based upon the foregoing analysis, this appeal is hereby sua sponte

dismissed as being untimely.

{¶9} Appeal dismissed.

THOMAS R. WRIGHT, J., concurs,

COLLEEN MARY O’TOOLE, J., concurs in judgment only with a Concurring Opinion.

_______________

2 COLLEEN MARY O’TOOLE, J., concurs in judgment only with a Concurring Opinion.

{¶10} I concur with the majority’s dismissal of appellant’s request for post-

conviction relief as untimely.

{¶11} A review of the docket indicates that appellant has not filed an appeal as

of right from his original conviction and sentence. Being incarcerated, appellant is pro se

and indigent. In the event that appellant wishes to request that this court review his

original conviction and sentence, he may file a request for delayed appeal pursuant to

App.R. 5(A)(1) which 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 in the following class of

cases: (a) Criminal proceedings[.]”

{¶12} Thus, I concur in judgment only.