[Cite as State v. Damron, 2011-Ohio-165.]




                             IN THE COURT OF APPEALS OF OHIO
                                FOURTH APPELLATE DISTRICT
                                      SCIOTO COUNTY

STATE OF OHIO,                        :    Case No. 10CA3375
                                      :
     Plaintiff-Appellant,             :
                                      :    DECISION AND
     v.                               :    JUDGMENT ENTRY
                                      :
JAMES E. DAMRON,                      :    RELEASED 01/07/11
                                      :
     Defendant-Appellee.              :
______________________________________________________________________
                            APPEARANCES:

James E. Damron, Chillicothe, Ohio, pro se Appellant

Mark E. Kuhn, SCIOTO COUNTY PROSECUTOR, Portsmouth, Ohio, for appellee.
______________________________________________________________________
Harsha, P.J.

        {¶1}    James E. Damron appeals the trial court’s denial of his post-sentence

“motion to withdraw” his guilty pleas to two counts of murder. However, Damron filed

his notice of appeal outside the time frame specified in App.R. 4(A). Therefore, we lack

jurisdiction to consider this appeal and must dismiss it.

                                             I. Facts

        {¶2}    In November 2002, the Scioto County grand jury indicted Damron on two

counts of aggravated murder with firearm specifications.1 Damron ultimately pleaded

guilty to two counts of murder (a lesser included offense of aggravated murder) without

firearm specifications, in March 2003. The trial court sentenced Damron to a prison


1
 The indictment mistakenly referred to the second specification as a “SPECIFICATION AS TO COUNT
ONE” of the indictment even though it immediately followed the second count of aggravated murder.
Scioto App. No. 10CA3375                                                                   2


term of 15 years to life on each count and ordered him to serve the terms concurrently.

In December 2009, Damron filed a “MOTION TO WITHDRAW GUILTY PLEA[S].”

Damron repeatedly referenced Crim.R. 32.1 in his memorandum in support of the

motion. However, the trial court treated his motion as a petition for post-conviction relief

and found the petition untimely under R.C. 2953.21. Thus the trial court denied

Damron’s “MOTION TO WITHDRAW GUILTY PLEA[S]” on March 9, 2010 without a

hearing. Damron filed a motion for reconsideration of that order, which the trial court

also denied on March 23, 2010.

       {¶3}   Damron appealed from the order denying the motion for reconsideration.

On June 4, 2010, we dismissed that appeal in State v. Damron, Scioto App. No.

10CA3347 and explained that a motion for reconsideration of a final order, i.e. the order

that denied the motion to withdraw, is a nullity. Thus, the trial court’s order purporting to

overrule that motion also constituted a nullity and was not a final, appealable order.

       {¶4}   Subsequently, Damron filed a motion asking the trial court to “issue a

‘Final Appealable Order’” with regard to the “motion to withdraw” his pleas. On June 23,

2010, the court issued a “NUNC PRO TUNC JUDGMENT ENTRY” entry, which states

the March 9, 2010 entry “shall include the following language: ‘This is a final appealable

order.’” Damron now appeals from the trial court’s June 23, 2010 entry in an effort to

challenge the court’s denial of his motion to withdraw his guilty pleas. Damron filed his

notice of appeal on July 8, 2010.

                                  II. Assignment of Error

       {¶5}   Damron raises the following assignment of error for our review:

       THE TRIAL COURT ABUSED IT’S [SIC] DISCRETION BY DENYING
       DEFENDANT’S MOTION TO WITHDRAW HIS PLEA IN VIOLATION OF
Scioto App. No. 10CA3375                                                                       3


       HIS DUE PROCESS RIGHTS AS GUARANTEED BY THE FIFTH AND
       FOURTEETH AMENDMENTS TO THE UNITED STATES
       CONSTITUTION AND SECTIONS 10 AND 16, ARTICLE 1 OF THE OHIO
       CONSTITUTION.

                                       III. Jurisdiction

       {¶6}   Before we address the merits of the appeal, we must decide whether we

have jurisdiction to do so. Appellate courts “have such jurisdiction as may be provided

by law to review and affirm, modify, or reverse judgments or final orders of the courts of

record inferior to the court of appeals within the district[.]” Section 3(B)(2), Article IV,

Ohio Constitution. Under App.R. 4(A), in a criminal case “[a] party shall file [a] notice of

appeal * * * within thirty days of the * * * entry of the judgment or order appealed * * *.”

“[F]ailure to file a timely notice of appeal under App.R 4(A) is a jurisdictional defect.” In

re H.F., 120 Ohio St.3d 499, 2008-Ohio-6810, 900 N.E.2d 607, at ¶17.

       {¶7}   Here, the trial court treated Damron’s motion to withdraw as a petition for

post-conviction relief, not a Crim.R. 32.1 motion. We do not share the trial court’s

conclusion about the nature of the relief Damron’s motion requested. We conclude the

motion was based upon Crim.R. 32.1 and simply sought to withdraw his plea after

sentencing. Thus, to the extent that the court applied R.C. 2953.21 in deciding the

motion, it erred. See State v. Bush, 96 Ohio St.3d 235, 2002-Ohio-3993, 773 N.E.2d

522, at syllabus (“R.C. 2953.21 and 2953.23 do not govern a Crim.R. 32.1 post-

sentence motion to withdraw a guilty plea.”). Nonetheless, a trial court’s order denying

a post-sentence Crim.R. 32.1 motion to withdraw a plea constitutes a final appealable

order. See State v. Kramer, Franklin App. No. 03AP-633, 2004-Ohio-2646, at ¶¶2-5;

State v. Davis (Apr. 20, 1999), Vinton App. No. 98CA523, 1999 WL 249716, at *4.
Scioto App. No. 10CA3375                                                                     4


       {¶8}   Moreover, even if we are wrong and the court correctly characterized the

motion as a petition for post-conviction relief, the court’s denial of the motion still

constituted a final, appealable order. When a court dismisses a petition for post-

conviction relief without an evidentiary hearing, as the trial court did in this case, the

court must make findings of fact and conclusions of law. State v. Knott, Athens App.

No. 03CA6, 2004-Ohio-510, at ¶7, citing R.C. 2953.21(C). “The time for appeal does

not begin to run until the findings of fact and conclusions of law are filed.” Id. at ¶8,

citing State v. Mapson (1982), 1 Ohio St.3d 217, 218-19, 438 N.E.2d 910 (per curiam).

“However, designated findings of fact and conclusions of law are not required if the

court issues a judgment entry that is sufficiently detailed to permit appellate review.” Id.,

citing State ex rel. Carrion v. Harris (1988), 40 Ohio St.3d 19, 20, 530 N.E.2d 1330 (per

curiam). Although the court in the present case did not specifically label its findings and

conclusions, it issued a detailed judgment entry setting forth its reasons for denying the

purported petition. Thus the March 9, 2010 entry satisfies the purpose of R.C.

2953.21(C).

       {¶9}   Therefore, regardless of how we characterize Damron’s “MOTION TO

WITHDRAW GUILTY PLEA[S],” the trial court’s March 9, 2010 entry denying his

request constitutes the final order that determined the action below, i.e. the action to

either withdraw the plea under Crim.R. 32.1 or to seek post-conviction relief. This entry

is this order from which Damron should have appealed.

       {¶10} Damron had 30 days to file his notice of appeal under App.R. 4(A) but did

not. Instead, he waited until July 8, 2010 to file a notice of appeal from the nunc pro

tunc entry. The nunc pro tunc entry made explicit what was already implicit in the
Scioto App. No. 10CA3375                                                                   5


March 9, 2010 order – that the March entry constituted a final, appealable order.

However, the trial court’s issuance of the nunc pro tunc entry did not restart the clock

under App.R. 4(A). “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.

       {¶11} Because Damron failed to file a timely appeal under App.R. 4(A) and did

not file a motion for delayed appeal under App.R. 5(A), we lack jurisdiction to consider

this appeal and must dismiss it.

                                                                    APPEAL DISMISSED.
Scioto App. No. 10CA3375                                                                   6


                                   JUDGMENT ENTRY

         It is ordered that the APPEAL BE DISMISSED and that Appellant shall pay the
costs.

         The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the Scioto
County Common Pleas Court to carry this judgment into execution.

       Any stay previously granted by this Court is hereby terminated as of the date of
this entry.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure. Exceptions.

Kline, J. & McFarland, J.: Concur in Judgment and Opinion.


                                          For the Court


                                          BY: ________________________
                                              William H. Harsha
                                              Presiding 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.
