State v. Harris , 2014 Ohio 672 ( 2014 )

[Cite as State v. Harris, 2014-Ohio-672.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
v. : No. 13AP-1014
(C.P.C. No. 12CR-5495)
Quincey B. Harris, :
(REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on February 25, 2014
Ron O’Brien, Prosecuting Attorney, and Steven L. Taylor, for
appellee.
Siewert & Gjostein Co., L.P.A., and Thomas A. Gjostein, for
appellant.
ON MOTIONS
CONNOR, J.
{¶ 1} Defendant-appellant, Quincey B. Harris ("appellant"), has filed motions
requesting: (1) leave to appeal from the judgment of the Franklin County Court of
Common Pleas pursuant to App.R. 5(A), and (2) leave to file a motion for
reconsideration and, if reconsideration is granted, an extension of time to file his initial
appellant's brief. Plaintiff-appellee, State of Ohio, has filed a memorandum opposing
the motion for leave to seek delayed reconsideration, but has not filed a memorandum
opposing the motion for leave to appeal. As the proceedings underlying these motions
present a somewhat convoluted history, we will address these proceedings in some
detail.
No. 13AP-1014 2
{¶ 2} On September 9, 2013, appellant, while represented by counsel, entered
guilty pleas to one count of murder with a specification and one count of felonious
assault. The trial court sentenced defendant to a total prison term of 18-years-to-life.
The court journalized its judgment entry imposing sentence on September 10, 2013.
{¶ 3} On October 30, 2013, defendant filed a pro se notice of appeal in the
Franklin County Court of Common Pleas, indicating that he was appealing the judgment
entry of conviction entered by the trial court on September 9, 2013. Defendant also filed
a pro se request for the transcript of proceedings. The pro se appeal was docketed as
case No. 13AP-921.
{¶ 4} Defendant also filed a pro se motion requesting that the trial court appoint
counsel to represent defendant in the appeal proceedings, as defendant is indigent. On
November 5, 2013, the trial court appointed Attorney L. Leah Reibel to represent
defendant for purposes of appeal. Then, without explanation, the trial court appointed
Attorney Thomas Gjostein to represent defendant for purposes of appeal on
November 6, 2013. Neither attorney entered an appearance on behalf of appellant in
case No. 13AP-921.
{¶ 5} On December 3, 2013, Attorney Gjostein filed a notice of appeal from the
trial court's September 10, 2013 judgment entry, and a motion for leave to file a delayed
appeal pursuant to App.R. 5. The appeal filed by Attorney Gjostein was docketed as case
No. 13AP-1014.
{¶ 6} On December 4, 2013, in case No. 13AP-921, Attorney Reibel filed a
motion to withdraw as the attorney for appellant, noting that new counsel had been
appointed to represent appellant. Although Attorney Reibel had never entered an
appearance in that action, this court granted her motion to withdraw as counsel on
December 5, 2013.
{¶ 7} On January 7, 2014, this court sua sponte dismissed the appeal pending
under case No. 13AP-921. The sole basis for the dismissal was that defendant failed to
file his brief within the time required by App.R. 18(C). On February 6, 2014, appellant,
through Attorney Gjostein, filed the motion seeking leave to file a motion for
reconsideration in case No. 13AP-921.
A. Case No. 13AP-921
No. 13AP-1014 3
{¶ 8} Initially, we will address the motion for leave to seek delayed
reconsideration. " 'App.R. 26 provides a mechanism by which a party may prevent
miscarriages of justice that could arise when an appellate court makes an obvious error
or renders an unsupportable decision under the law.' " Corporex Develop. & Constr.
Mgt., Inc. v. Shook, Inc., 10th Dist. No. 03AP-269, 2004-Ohio-2715, ¶ 2, quoting State
v. Owens, 112 Ohio App.3d 334, 336 (11th Dist.1996). When presented with an
application for reconsideration filed pursuant to App.R. 26, an appellate court must
determine whether the application "calls to the attention of the court an obvious error in
its decision, or raises an issue for consideration that was either not considered at all or
was not fully considered by the court when it should have been." Columbus v. Hodge,
37 Ohio App.3d 68 (10th Dist.1987), syllabus. Importantly, an appellate court will not
grant "[a]n application for reconsideration * * * just because a party disagrees with the
logic or conclusions of the appellate court." Bae v. Dragoo & Assoc., Inc., 10th Dist. No.
03AP-254, 2004-Ohio-1297, ¶ 2.
{¶ 9} An application for reconsideration "shall be made in writing no later than
ten days after the clerk has both mailed to the parties the judgment or order in question
and made a note on the docket of the mailing as required by App. R. 30(A)." App.R.
26(A)(1)(a). As noted above, this court sua sponte dismissed the appeal pending under
13AP-921 on January 7, 2014. Defendant filed the motion seeking leave to file the
motion for reconsideration on February 6, 2014, well after the ten-day time limit had
expired.
{¶ 10} App.R. 14(B), however, provides that "[f]or good cause shown, the court,
upon motion, may enlarge or reduce the time prescribed by these rules or by its order
for doing any act, or may permit an act to be done after the expiration of the prescribed
time." The rule provides that "[e]nlargement of time to file an application for
reconsideration * * * pursuant to App. R. 26(A) shall not be granted except on a showing
of extraordinary circumstances." Id. See also State v. Boone, 114 Ohio App.3d 275, 277
(7th Dist.1996) (noting that a motion for reconsideration may be entertained even
though it was filed beyond the ten-day time limit "if the motion raises an issue of
sufficient importance to warrant entertaining it beyond the ten-day limit"); State v.
Lawson, 10th Dist. No. 12AP-53, 2013-Ohio-803, ¶ 6 (finding extraordinary
No. 13AP-1014 4
circumstances supported the defendant's motion for leave to file a delayed application
for reconsideration where, between our merit decision and the defendant's motion for
leave, the Supreme Court of Ohio issued three opinions which "directly appl[ied] to our
holding in Lawson").
{¶ 11} In support of the motion for leave to file the delayed motion for
reconsideration, Attorney Gjostein notes that after he received his appointment as
counsel, he reviewed the court records, and "could not locate an appellate case number
for the Appellant, but was able to learn that the Appellant had filed pro se a Notice of
Appeal and Request for Transcript." (Appellant's Motion for Leave to File Motion for
Reconsideration, 2.) Attorney Gjostein asserts that "[t]he existence of Case No. 13AP-
921 was unknown" to him, "either through an anomaly in the E-filing system or
inadvertence in searching for a misspelling of the name of the Appellant in the records
on Case Information On-Line." (Appellant's motion for leave to file, 3.) Attorney
Gjostein indicates that he first learned of the appeal pending under case No. 13AP-921
on January 13, 2014, when he received an email from the clerk of court.
{¶ 12} Appellant has failed to demonstrate extraordinary circumstances which
would encourage this court to disregard the ten-day time limitation in App.R. 26(A).
Notably, Attorney Gjostein indicates that he learned of case No. 13AP-921 on
January 13, 2014; only seven days after this court's January 7, 2014 journal entry
dismissing the case. Accordingly, Attorney Gjostein could have filed a timely motion for
reconsideration. Moreover, our review of appellant's motion for leave to file the motion
for reconsideration does not reveal any issues of sufficient importance which would
warrant this court in entertaining the untimely motion. Appellant has not identified any
error in our entry dismissing case No. 13AP-921 for defendant's failure to timely file his
appellant's brief. Rather, the sole basis for appellant's motion seeking leave to file the
delayed motion for reconsideration is that Attorney Gjostein failed to discover the
existence of case No. 13AP-921 until after he filed the notice of appeal in case No. 13AP-
1014.
{¶ 13} Furthermore, although we dismissed case No. 13AP-921 for a violation of
App.R. 18(C), we never possessed jurisdiction in that case. App.R. 4(A) provides that
"[a] party shall file [a] notice of appeal * * * within thirty days of the * * * entry of the
No. 13AP-1014 5
judgment or order appealed." Accordingly, appellant was obligated to file his notice of
appeal by October 10, 2013; 30 days after the trial court journalized the judgment entry
imposing sentence. Defendant filed his pro se notice of appeal on October 30, 2013.
Failure to comply with App.R. 4(A) is a fatal jurisdictional defect. In re H.F., 120 Ohio
St.3d 499, 2008-Ohio-6810, ¶ 17; State v. Monroe, 10th Dist. No. 10AP-839, 2012-
Ohio-239, ¶ 8.
{¶ 14} Defendant has failed to demonstrate good cause to overcome the untimely
filing of his motion for reconsideration. Accordingly, defendant's motion for leave to file
his delayed motion for reconsideration is denied.
B. 13AP-1014
{¶ 15} App.R. 5(A) allows a defendant to file a motion for leave to file a delayed
appeal after the expiration of the 30-day period provided by App.R. 4(A). Such a motion
must set forth the reasons for the failure of a defendant to perfect an appeal as of right.
The defendant has the burden of "demonstrating a reasonable explanation of the basis
for failure to perfect a timely appeal." State v. Cromlish, 10th Dist. No. 94APA06-855
(Sept. 1, 1994). "Lack of effort or imagination, and ignorance of the law * * * do not
automatically establish good cause for failure to seek timely relief." State v. Reddick, 72
Ohio St.3d 88, 91 (1995) (affirming denial of application to re-open appeal). The
decision to grant or deny a motion for leave to appeal, pursuant to App.R. 5(A), rests
within the sound discretion of the court of appeals. State v. Morris, 10th Dist. No.
05AP-1139, 2005-Ohio-6479.
{¶ 16} In his pending motion, appellant notes that, although his notice of appeal
was not filed with the trial court until October 30, 2013, the certificate of service
attached to the pro se notice of appeal indicates that appellant sent the notice of appeal
to the Franklin County Prosecutor's Office on October 8, 2013. Had appellant filed the
notice of appeal on October 8, 2013, the notice of appeal would have been timely filed.
Appellant asserts that "the delay in approving the documents to be mailed by the [Ohio
Department of Rehabilitations and Corrections] and the timing of the mailing by the
United States Postal Service" were factors which were outside of his control. (Motion
for Leave to File Delayed Appeal, 4.) Although defendant's asserted justification for the
untimely notice of appeal may be insufficient in isolation, when combined with the other
No. 13AP-1014 6
events in this action, we find defendant has set forth a reasonable justification for his
failure to timely file a notice of appeal.
{¶ 17} The instant action is similar to State v. Alexander, 10th Dist. No. 05AP-
192, 2005-Ohio-5997. There, the appellant plead guilty to certain criminal charges and
the trial court filed the judgment entry imposing sentence on January 26, 2005. On
January 27, 2005, the "appellant wrote to the trial judge and asked that counsel be
appointed for purposes of appeal and post-conviction relief," and the trial court
appointed appellate counsel the same day. Id. at ¶ 6. The court then appointed a second
appellate counsel on February 17, 2005. The appellant filed a pro se notice of appeal on
February 28, 2005. The pro se appeal was docketed as case No. 05AP-192. On
March 10, 2005, the second appointed appellate counsel filed a notice of appeal. The
appeal filed by counsel was docketed as case No. 05AP-245. Counsel subsequently filed
a motion for leave to file a delayed appeal, noting that she did not receive her notice of
appointment until on or after March 4, 2005.
{¶ 18} We noted that both the February 28, 2005 pro se notice of appeal and the
March 10, 2005 notice of appeal failed to comply with the timeliness requirements of
App.R. 4(A). Nevertheless, we noted the requirements of App.R. 5, and reviewed the
record to conclude that "it [was] clear that appellant wanted to appeal." Id. at ¶ 22. The
appellant had asked the court to appoint appellate counsel, and the first counsel
appointed by the court failed to file a notice of appeal. The court then appointed a
second appellate counsel on February 17, 2005, "eight days before the time for filing an
appeal as of right was to expire, [and] no appeal as of right was taken within the 30-day
time period permitted by App.R. 4(A)." Id. at ¶ 23. We determined that, "[a]lthough 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," the appellant had
"adequately set forth reasons for the failure to perfect an appeal as of right." Id. at ¶ 25.
We further noted that the State did not "contest the motion for delayed appeal." Id.
Accordingly, we granted the motion for leave to appeal.
{¶ 19} The record before this court similarly reveals that, although the
procedures set out in App.R. 3, 4, and 5 were, to varying degrees, not followed in these
cases, it is nonetheless apparent from the record that defendant wanted to appeal.
No. 13AP-1014 7
Although defendant should have requested that the court appoint appellate counsel
shortly after the court journalized its judgment entry imposing sentence, defendant did
attempt to preserve his appeal rights and request the appointment of appellate counsel
all at the same time. Defendant did not have appointed appellate counsel until after the
App.R. 4(A) 30-day time limit had already expired. As noted, defendant also attempted
to mail his notice of appeal within the App.R. 4(A) time limit, but failed to account for
the time it would take for the documents to process through the mail. Although
defendant's failure to account for the mail delay might alone be insufficient to support
granting the motion for leave to appeal, we find that defendant's attempt to timely file
his notice of appeal in conjunction with the confusion caused by the two appointed
appellate counsel, and Attorney Gjostein's failure to discover the existence of case No.
13AP-921 until after he filed the notice of appeal in case No. 13AP-1014, support
granting the motion for leave to file the delayed appeal. The State also does not oppose
the motion for delayed appeal filed in case No. 13AP-1014. The relatively short time
frame between the appeal dead line, defendant's pro se notice of appeal in case No.
13AP-921, and the motion for leave to appeal in case No. 13AP-1014 also support
granting the motion for leave to file a delayed appeal.
{¶ 20} Based on the foregoing, we find appellant has set forth a sufficient reason
for the failure to file a timely notice of appeal. Accordingly, appellant's motion for leave
to appeal is granted.
Motion for leave to appeal granted; motion for leave to file a motion for
reconsideration and motion for extension of time denied.
SADLER, P.J. and BROWN, J., concur.
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