Court of Appeals of Ohio, Seventh District, Jefferson
Application for Reconsideration Pursuant to App.R. 26(A)(1).
Plaintiff-Appellee: Atty. Jane M. Hanlin Prosecuting Attorney
Atty. Frank J. Bruzzese Assistant Prosecuting Attorney
Jefferson County Justice Center.
Defendant-Appellant: Frank Lee Larkins, Jr., Pro se.
Reconsideration Pursuant to App.R. 26(A)(1). JUDGMENT:
Application Denied. APPEARANCES: For Plaintiff-Appellee:
Atty. Jane M. Hanlin
Cheryl L. Waite Hon. Gene Donofrio Hon. Carol Ann Robb,
OPINION AND JUDGMENT ENTRY
Appellant Frank L. Larkins, Jr. requests reconsideration of
our Opinion in State v. Larkins, 7th Dist. No. 16 JE
0032, 2017-Ohio-9369, pursuant to App.R. 26(A). Appellant
argues that this Court did not consider the trial court's
failure to provide a curative instruction following witness
testimony involving a prior bad act. As Appellant's
motion is untimely and fails to raise an issue either not
considered or not fully considered by this Court, the
application is denied.
On August 5, 2015, Appellant was indicted on one count of
rape, a felony of the first degree in violation of R.C.
2907.02(A)(1)(b), (B). Appellant initially confessed to
engaging in consensual sexual conduct with the
twelve-year-old victim but later claimed that his confession
was false. At trial, a videotaped interview and an audio
recording of a phone call with his father where he confessed
were both played for the jury and admitted into evidence.
On May 19, 2016, the jury found Appellant guilty on the sole
charge of the indictment. The trial court sentenced Appellant
to life in prison without parole eligibility for ten years.
Appellant is also required by law to report as a tier three
sex offender. We affirmed Appellant's conviction and
sentence in Larkins, supra.
The test generally applied upon the filing of a motion for
reconsideration in the court of appeals is whether the motion
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, 523 N.E.2d 515
(10th Dist.1987), paragraph one of the syllabus.
App.R. 26(A)(1)(a) states, in relevant part:
"[application for reconsideration of any cause or motion
submitted on appeal 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)."
Appellant's judgment was mailed to his appellate counsel
and a note relevant to this mailing was placed on the docket
on December 19, 2017. To be timely, an application would have
been filed no later than December 29, 2017. However,
Appellant did not file his "motion" until January
2, 2018, four days after the deadline.
Pursuant to App.R. 14(B), an "[enlargement of time to
file an application for reconsideration or for en banc
consideration pursuant to App. R. 26(A) shall not be granted
except on a showing of extraordinary circumstances."
Appellant contends that his counsel did not mail him a copy
of the judgment entry until December 27, 2017. Appellant has
not provided a copy of a mail log or other evidence
supporting this contention. However, even if Appellant's
application could be ...