State v. Blankenship , 2013 Ohio 5261 ( 2013 )

[Cite as State v. Blankenship, 2013-Ohio-5261.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ROSS COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : Case No. 13CA3364
vs. :
ANTHONY L. BLANKENSHIP, : DECISION AND JUDGMENT ENTRY
Defendant-Appellant. :
______________________________________________________________
APPEARANCES:
COUNSEL FOR APPELLANT: Lori J. Rankin, 14 South Paint Street, Ste. 1, Chillicothe,
Ohio 45601
COUNSEL FOR APPELLEE: Matthew S. Schmidt, Ross County Prosecuting Attorney,
and Jeffrey C. Marks, Ross County Assistant Prosecuting
Attorney, 72 North Paint Street, Chillicothe, Ohio 45601
CRIMINAL APPEAL FROM COMMON PLEAS
DATE JOURNALIZED: 11-21-13
ABELE, J.
{¶ 1} This is an appeal from a Ross County Common Pleas Court judgment of
conviction and sentence. Anthony L. Blankenship, defendant below and appellant herein, pled
no contest to a charge of drug possession in violation of R.C. 2925.11. Appellant assigns the
following error for review1:
“THE TRIAL COURT ERRED IN VIOLATION OF MR.
1
Appellant’s brief does not include a separate statement of the assignment(s) of error as App.R. 16(A)(3) requires.
Thus, we take the assignment of error from the Table of Contents.
ROSS, 13CA3364 2
BLANKENSHIP’S RIGHTS UNDER THE FOURTH
AMENDMENT TO THE UNITED STATES CONSTITUTION
AND ARTICLE I, SECTION 10 OF THE OHIO
CONSTITUTION WHEN THE TRIAL COURT OVERRULED
MR. BLANKENSHIP’S MOTION TO SUPPRESS EVIDENCE.”
{¶ 2} On November 4, 2011, the Ross County Grand Jury returned an indictment that
charged appellant with drug possession (cocaine). Appellant pled not guilty and filed a motion
to suppress the evidence against him on grounds that the police did not have reasonable suspicion
of criminal activity for a constitutional investigative stop under Terry v. Ohio, 392 U.S. 1, 88
S.Ct. 1868, 20 L.Ed.2d 889 (1968). The trial court overruled appellant's motion and, after
appellant pled no contest, found him guilty.
{¶ 3} On November 13, 2012 the trial court sentenced appellant to various community
control sanctions. That entry, however, incorrectly stated that appellant had pled guilty. The
court issued a December 14, 2012 nunc pro tunc entry that reflected that appellant had, in fact,
pled no contest. No other changes appear from the original sentencing entry. Appellant filed
his notice of appeal on January 14, 2013.
{¶ 4} Before we address the merits of the assignment of error, we first address a
threshold jurisdictional issue. A notice of appeal must be filed within thirty days of the
judgment that is being appealed. App.R. 4(A). This requirement is jurisdictional and we cannot
consider any appeal filed outside of that period. State v. Francis, 4th Dist. Meigs No. 10CA2,
2011-Ohio-4497, at ¶12; State v. Cremeens, 4th Dist. Vinton No. 06CA646, 2006-Ohio-7092, at
¶6; State v. Matthews, 4th Dist. Highland No. 00CA9, 2000 WL 33907712 (Nov. 9, 2000).
Moreover, even when the parties do not raise a jurisdictional issue (as is the case here), a
reviewing court must raise it sua sponte. State v. Frye, 4th Dist. Scioto No. 12CA3499,
ROSS, 13CA3364 3
2013-Ohio-3307, at ¶4; also see In re Murray, 52 Ohio St.3d 155, 159–160, 556 N.E.2d 1169, at
fn. 2 (1990); Whitaker–Merrell v. Geupel Co., 29 Ohio St.2d 184, 186, 280 N.E.2d 922 (1972)
(applying the principle in the context of civil cases).
{¶ 5} In the case sub judice, the trial court entered final judgment on November 13,
2012. For this Court to have jurisdiction over an appeal from that judgment, a notice of appeal
had to be filed within thirty days of that date. Appellant filed his notice of appeal on January 14,
2013. This is outside the thirty day time frame and, thus, we do not have jurisdiction to consider
this matter.
{¶ 6} Appellant does not address this issue, but we suspect that his counter-argument
would be that he filed his notice of appeal within thirty days of the December 14, 2012 nunc pro
tunc entry. Indeed, his notice of appeal expressly references the “Judgment Entry of Sentence
[that] was journalized on Dec. 14, 201[2]2.”
{¶ 7} However, as this Court has previously held, a nunc pro tunc entry does not “restart
the clock” for purposes of filing an appeal. State v. Damron, 4th Dist. Scioto No. 10CA3375,
2011-Ohio-165, at ¶10. “A nunc pro tunc entry is the procedure used to correct clerical errors in
a judgment entry, but the entry does not extend the time within which to file an appeal, as it
relates back to the original judgment entry.” State v. Yeaples, 180 Ohio App.3d 720,
2009-Ohio-184, 907 N.E.2d 333, at ¶ 15 (3rd Dist.); also see Damron, supra, at ¶10; State v.
Crosby, 12th Dist. Clermont Nos. CA2010–10–081 & CA2011–02–013, at ¶12.
{¶ 8} Here, the nunc pro tunc entry corrected an erroneous statement in the original
2
The Notice of Appeal incorrectly sets forth the year as 2013 rather than 2012.
ROSS, 13CA3364 4
sentencing entry (that appellant had pled guilty), and brought the trial court’s final judgment into
conformity with what is apparent from the record (i.e. that appellant pled no contest). No
change occurred to the sentence or to any other substantive part of the original entry.
{¶ 9} Therefore, appellant’s notice of appeal should have been filed within thirty days
of the original judgment, rather than thirty days from the nunc pro tunc judgment. It was not.
Accordingly, this Court lacks the jurisdiction to review the matter and we hereby dismiss the
appeal.3
APPEAL DISMISSED.
3
This is not to say, however, that appellant is forever foreclosed from appellate review. Appellant may choose to
pursue a delayed appeal under App.R. 5.
[Cite as State v. Blankenship, 2013-Ohio-5261.]
JUDGMENT ENTRY
It is ordered that the appeal be dismissed and that appellee recover of 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 Ross County
Common Pleas Court to carry this judgment into execution.
If a stay of execution of sentence and release upon bail has been previously granted, it is
continued for a period of sixty days upon the bail previously posted. The purpose of said stay is
to allow appellant to file with the Ohio Supreme Court an application for a stay during the
pendency of the proceedings in that court. The stay as herein continued will terminate at the
expiration of the sixty day period.
The stay will also terminate if appellant fails to file a notice of appeal with the Ohio
Supreme Court in the forty-five day period pursuant to Rule II, Sec. 2 of the Rules of Practice of
the Ohio Supreme Court. Additionally, if the Ohio Supreme Court dismisses the appeal prior to
the expiration of said sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
McFarland, P.J. & Hoover, J.: Concur in Judgment & Opinion
For the Court
BY:
Peter B. Abele, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the
time period for further appeal commences from the date of filing with the clerk.