Opinion
29114
06-02-2021
STATE OF OHIO Plaintiff-Appellee v. CHARLES DAVIS HOUSTON Defendant-Appellant
[Criminal Appeal from Common Pleas Court] Trial Court Case No. 2020 CR 03190
DECISION AND ENTRY
PER CURIAM
{¶ 1} Charles Davis Houston pled no contest, was found guilty, and was sentenced in the underlying criminal case by way of a judgment entry journalized on April 1, 2021. Houston filed a notice of appeal on May 5, 2021, and motion for leave to file a delayed appeal on May 6, 2021. This is his direct appeal.
{¶ 2} The State of Ohio opposes the motion for a delayed appeal. Among other things, the State argues that the appeal should be dismissed because Houston did not file his motion for leave concurrently with his notice of appeal. App.R. 5(A), which governs delayed appeals by criminal defendants, states:
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.(Emphasis added.) App.R. 5(A)(2). Here, Houston's motion was filed one day after his notice of appeal.
{¶ 3} The State relies on this court's opinion in In re G.W., 2020-Ohio-300, 151 N.E.3d 1043 (2d Dist.). In G.W., we held that the state had not properly invoked our jurisdiction where it did not file its notice of appeal concurrently with its motion for leave to appeal. Id. at ¶ 9. The State here suggests that a criminal defendant's motion for delayed appeal should be held to the same standard as a prosecutor's motion for leave to appeal.
{¶ 4} Because of differences between a criminal defendant's right to a direct appeal and a state's discretionary appeal, we decline to do so. In G.W., we noted that:
G.W. at ¶ 4.The Supreme Court of Ohio has held that "[t]he state is strictly held to the requirements of App.R. 5 when appealing by leave of court." [State ex rel. T.L.M. v. Judges of First Dist. Court of Appeals, 147 Ohio St.3d 25, 2016-Ohio-1601, 59 N.E.3d 1260, ] ¶ 12. Where "the state [does] not comply with the requirements of App.R. 5, the court of appeals patently and unambiguously lack[s] jurisdiction over the state's appeal." State ex rel. Steffen v. Court of Appeals, First Appellate Dist, 126 Ohio St.3d 405, 2010-Ohio-2430, 934 N.E.2d906, ¶ 28.
{¶ 5} Strict compliance by the state "is required because of the nature of appeals by the State." Id. at ¶ 8. "Unless permitted by statute, the weight of authority in this country is against the right of the government to bring error in a criminal case." State v. Simmons, 49 Ohio St. 305, 307, 31 N.E. 34 (1892). The state's narrow and limited right to appeal and, as relevant here, its ability to seek an appeal of other orders at the discretion of a court of appeals, are established in R.C. 2945.67. Id. at ¶ 8. That statute is an exception to the general rule prohibiting governmental appeals in criminal cases, and as such must be strictly construed. Id., citing State v. Powers, 10th Dist. Franklin No. 15AP-422, 2015-Ohio-5124, ¶ 9. The state is therefore held to a high standard when seeking leave to take a discretionary appeal.
{¶ 6} In contrast, the right of a criminal defendant to take a direct appeal from his or her conviction is the rule, rather than the exception. The right is broad, firmly established, and structurally protected in the event of an excusable delay. See R.C. 2953.02 ("in any other criminal case, * * * the judgment or final order of a court of record inferior to the court of appeals may be reviewed in the court of appeals"); Crim.R. 32(B) (concerning the trial court's notification of a defendant's right to appeal and associated rights after conviction); App.R. 5(A) (allowing delayed appeals in criminal, delinquency, and serious youthful offender proceedings once the time for an appeal of right has expired). App.R. 5(A) represents a safety valve for the often incarcerated, "usually indigent, and frequently unrepresented" defendants who lack the funds, knowledge, or paperwork to promptly prosecute their appeal from prison. See 1994 Staff Note, App.R. 5(A).
{¶ 7) Thus, some amount of delay is presumed where a criminal defendant is seeking delayed appeal under App. R. 5(A). Delay between the filing of the notice of appeal and the motion for delayed appeal cannot always be prevented or predicted, such as when an incarcerated defendant timely mails his notice of appeal but later learns it did not reach the clerk for filing within the 30 day window, and submits a motion for delayed appeal thereafter.
{¶ 8} For the state, however, delay is not presumed or permitted under App.R. 5(C). Notably, there is no such vehicle as a delayed state's appeal in Ohio. See State v. Padavick, 8th Dist. Cuyahoga No. 49585, 1985 WL 8404, *4 (Nov. 1, 1985) (holding that App.R. 5 "does not provide the state with the right to a delayed appeal"). Instead, the Supreme Court of Ohio has said that where the state misses the deadline, the court of appeals lacks jurisdiction. See State ex rel. T.L.M. v. Judges of First Dist. Court of Appeals, 147 Ohio St.3d 25, 2016-Ohio-1601, 59 N.E.3d 1260, ¶14 ("the court of appeals never obtained jurisdiction to decide whether the state could appeal, because the state did not strictly adhere to the requirements of App.R. 5 by filing its motions in the court of appeals before the deadline"). We are not aware of, and the State has not pointed to, any precedent similarly limiting this court's jurisdiction over a defendant's delayed appeal where there is a delay, or a lack of concurrency. Thus, while the State is correct that App.R. 5(A) instructs a criminal defendant to file his or her delayed appeal motion concurrently with the notice of appeal, criminal defendants need not reach the level of strict compliance required of the state, and this court is not deprived of jurisdiction by their delay.
{¶ 9} Here, this court has considered the parties' arguments and the filings before us. Upon consideration, we SUSTAIN Houston's motion for leave to file a delayed appeal. This appeal shall proceed in accordance with the Rules of Appellate Procedure.
SO ORDERED.
MICHAEL L. TUCKER, Presiding Judge, CHRISTOPHER B. EPLEY, Judge