State v. Johnson , 2014 Ohio 2015 ( 2014 )

[Cite as State v. Johnson, 2014-Ohio-2015.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
STATE OF OHIO, : MEMORANDUM OPINION
Plaintiff-Appellee, :
CASE NO. 2013-T-0121
- vs - :
FREDERICK D. JOHNSON, :
Defendant-Appellant. :
Criminal Appeal from the Trumbull County Court of Common Pleas.
Case No. 2010 CR 00061.
Judgment: Appeal dismissed.
Dennis Watkins, Trumbull County Prosecutor, and LuWayne Annos, Assistant
Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH
44481-1092 (For Plaintiff-Appellee).
Frederick D. Johnson, pro se, PID: A602989, Ross Correctional Institution, P.O. Box
7010, Chillicothe, OH 45601 (Defendant-Appellant).
TIMOTHY P. CANNON, P.J.
{¶1} This matter is before this court on the pro se motion of Frederick D.
Johnson for “leave of court pursuant to R.Civ.Proc. 6(B).” In his motion, Johnson
requests this court to grant him leave to file a delayed appeal pursuant to App.R. 5(A).
Johnson filed this motion, along with a notice of appeal, on December 16, 2013. The
state of Ohio filed a response in opposition on December 19, 2013.
{¶2} Johnson was found guilty of a five-count indictment. The indictment
charged Johnson with possession of cocaine with firearm and forfeiture specifications;
possession of heroin with firearm, forfeiture, and major drug offender specifications;
tampering with evidence; having weapons while under disability; and failure to comply
with the order or signal of a police officer. Johnson was sentenced to an aggregate
term of 32 years in prison. This court, in State v. Johnson, affirmed the judgment of the
trial court. 11th Dist. Trumbull No. 2011-T-0075, 2012-Ohio-3035. Thereafter, Johnson
filed a pro se “Petition to Have the Conviction Vacated Pursuant to R.C. 2945.75(A)(2),”
which was denied by the trial court on January 22, 2013. It is from this entry Johnson
now seeks leave to appeal; thus, it is untimely by nearly eleven months.
{¶3} App R. 5(A) provides, in relevant part and emphasis added:
(1)(a) 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 * * * [c]riminal proceedings * * *.
(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.
{¶4} At the outset, we note Johnson has failed to comply with Loc.R. 3(D)(3)
which states the following: “The appellant shall attach to the Notice of Appeal, a copy of
the judgment entry or entries being appealed. Appellant’s failure to attach a copy of the
judgment entry or entries may result in the dismissal of the appeal sua sponte and
without notice.” Johnson did not attach a judgment entry to his notice of appeal or
otherwise provide a copy to this court.
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{¶5} Johnson cites to events beyond his control, “inter alia, lock downs due to
gang fighting and fog counts and the Library being closed due to no Librarian” for his
failure to perfect his appeal. However, given the length of time of nearly eleven months
that has passed from the time of the trial court’s January 22, 2013 judgment until the
filing of his motion for delayed appeal, it is evident that Johnson was not diligent in
taking the proper steps to protect his rights.
{¶6} As such, we find Johnson has neither satisfied the requirement of filing a
proper notice of appeal nor has he provided this court, as required by App.R. 5(A), with
reasons to adequately justify waiting nearly eleven months to initiate a direct appeal.
Johnson’s motion for leave to file a delayed appeal is hereby overruled.
{¶7} Appeal dismissed.
DIANE V. GRENDELL, J.,
THOMAS R. WRIGHT, J.,
concur.
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