Court of Appeals of Ohio, First District, Hamilton
Criminal Appeal From Hamilton County Municipal Court TRIAL
T. Deters, Hamilton County Prosecuting Attorney, and Sean M.
Donovan, Assistant Prosecuting Attorney, for
Timothy J. McKenna, for Defendant-Appellant.
It is axiomatic that a party must timely file a notice of
appeal to confer jurisdiction upon us as an appellate
tribunal. Defendant James Harmon filed two notices of appeal
seeking to challenge his sentence but both were submited well
after the relevant time limitations. We dismissed his first
appeal for want of jurisdiction, and his second appeal meets
the same fate.
The instant appeal arises from a May 2016 incident in which
Mr. Harmon was charged with operating a motor vehicle while
under the influence, in violation of R.C. 4511.19.
Ultimately, Mr. Harmon pleaded guilty to the charge. On
February 17, 2017, the municipal court judge found Mr. Harmon
guilty and sentenced him to 180 days in jail with 170 days
suspended (and ordered him to complete ten days of treatment
at Talbert House). The court initially stayed the sentence
pending an appeal, but Mr. Harmon did not get around to
filing a notice of appeal until the end of October 2017-an
appeal tardy by seven months. Based on the lateness of the
notice of appeal, we dismissed it in January 2018 for
In the aftermath of the dismissal of the appeal, the trial
court lifted the stay pending appeal on February 22, 2018,
with a notational order that says "sentence
imposed." Believing that afforded him another chance to
appeal, Mr. Harmon then filed a pro se notice of appeal on
March 22, 2018, and another motion to stay with the municipal
court. Because this second appeal was also untimely, however,
we must again dismiss Mr. Harmon's appeal.
Appellate courts generally only have jurisdiction to review
"final orders" rendered by the lower courts. Ohio
Constitution, Article IV, Section 3(B)(2); see R.C.
2505.02. Additionally, App.R. 4(A)(1) directs "a party
who wishes to appeal from an order that is final upon its
entry shall file the notice of appeal * * * within 30 days of
that entry." Thus, a party wishing to appeal a
"final order" must do so within 30 days of entry of
Additionally, for purposes of appeal in criminal cases such
as here, a valid judgment of conviction constitutes a final
appealable order. R.C. 2505.02(B); State v. Jackson,
151 Ohio St.3d 239, 2017-Ohio-7469, 87 N.E.3d 1227, ¶ 11
("A judgment of conviction qualifies as a final order
under R.C. 2505.02(B)"). Under Crim.R. 32(C) and
relevant Supreme Court authority, a judgment of conviction
constitutes a "final order subject to appeal under R.C.
2505.02 when it sets forth (1) the fact of the conviction,
(2) the sentence, (3) the judge's signature, and (4) the
time stamp indicating the entry upon the journal by the
clerk." State v. White, Slip Opinion No.
2019-Ohio-1215, ¶ 13, quoting State v. Lester,
130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142, paragraph
one of the syllabus. Therefore, a criminal defendant may
appeal from a judgment of conviction as a final order when
that judgment conforms with the above requirements.
And the February 17, 2017 judgment checks all of the boxes
identified above. It reflects the fact of conviction, Mr.
Harmon's sentence, the judge's signature, and the
stamp indicating journalization. Mr. Harmon's appellate
clock started ticking on that date, which explains why we
rejected as untimely his October notice of appeal.
A different result obtains here only if the February 2018
order constitutes a final order that would thereby trigger a
new appellate window. But it does not. The only thing that
occurred in February 2018 was that the court lifted the stay
that had been implemented a year earlier. To be sure, some
confusion arises based on the "sentence imposed"
language but the sentence was actually imposed in February
2017. The February 2018 order does not contain the basic
hallmarks of a final judgment, such as the absence of any
indication of what the sentence is. Therefore, it cannot
constitute a final appealable order, nor does it satisfy any
of the other criteria for final orders under R.C. 2505.02(B).
In short, Mr. Harmon's appeal comes about a year too
late. See, e.g., State v. Perez, 5th Dist.
Licking No. 03-CA-107, 2004-Ohio-3646, ¶ 25 ("the
record reveals appellant filed his notice of appeal of the
[judgment entry] well outside the thirty-day deadline set
forth in App.R. 4(A)."); Gasper v. Bank of Am.,
N.A., 9th Dist. Medina No. 17CA0091-M, 2019-Ohio-1150,
¶ 6 ("Failure to file the notice of appeal within
the time period set forth in App.R. 4(A) is a jurisidictional
defect and is fatal to any appeal.").
As a criminal defendant, Mr. Harmon was not without any
possible remedy for the untimeliness of his appeal. Criminal
defendants may petition an appellate court for leave to file
an untimely appeal under App.R. 5(A). This rule provides
that: "[a]fter the expiration of the thirty day period
provided by App.R. 4(A) * * * an appeal may be taken by a
defendant with leave of the court * * * in the following
classes of cases: (a) [c]riminal proceedings." App.R.
5(A). No such motion, however, was made ...