Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Larkins

Court of Appeals of Ohio, Seventh District, Jefferson

February 20, 2018

STATE OF OHIO PLAINTIFF-APPELLEE
v.
FRANK LEE LARKINS, JR. DEFENDANT-APPELLANT

         Appellant's Application for Reconsideration Pursuant to App.R. 26(A)(1).

          For Plaintiff-Appellee: Atty. Jane M. Hanlin Prosecuting Attorney Atty. Frank J. Bruzzese Assistant Prosecuting Attorney Jefferson County Justice Center.

          For 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

          Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Carol Ann Robb, Judge.

          OPINION AND JUDGMENT ENTRY

          PER CURIAM.

         {¶1} 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.

         {¶2} 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.

         {¶3} 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.

         {¶4} 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)."

         {¶5} 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.

         {¶6} 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.