[Cite as State v. Lockhart, 2021-Ohio-3912.]

COURT OF APPEALS 

DELAWARE COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO 

 Plaintiff-Appellee 

-vsJOHN C. LOCKHART 

 Defendant-Appellant 

JUDGES: 

: Hon. W. Scott Gwin, P.J. 

: Hon. William B. Hoffman, J. 

: Hon. Earle E. Wise, J. 

: 

: 

: Case No. 21 CAA 07 0036 

: 

: 

: OPINION 

CHARACTER OF PROCEEDING: Civil appeal from the Delaware County 

Court of Commo Pleas, Case No. 06-CRI01-0011 

JUDGMENT: Dismissed 

DATE OF JUDGMENT ENTRY: November 3, 2021 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

MELISSA A. SCHIFFEL JOHN C LOCKHART, JR. 

Delaware County Prosecutor #536014 

BY: JACQUELINE J. RAPIER Allen-Oakwood Correctional Institution 

Assistant Prosecutor Box 4501 

145 North Union Street, 3rd Floor Lima OH 45802 

Delaware, OH 43015 
Delaware County, Case No. 21 CAA 07 0036 2 

Gwin, P. J., 

{¶1} Appellant John C. Lockhart [“Lockhart”] appeals from the May 10, 2021 

judgment entry of the Delaware County Court of Common Pleas overruling his application 

for post-conviction DNA testing. 

Facts and Procedural History 

{¶2} In 2006, Lockhart was indicted upon three counts of rape in violation of R.C. 

2907.02(A)(1)(b) and three counts of gross sexual imposition in violation of R.C. 

2907.05(A)(4) arising from his assaults of a 9-year-old child. After trial by jury, Lockhart 

was found guilty as charged and sentenced to an aggregate term of life in prison. Lockhart 

directly appealed from his convictions and sentences but did not challenge the life 

sentence. State v. Lockhart, 5th Dist. Delaware No. 06CAA100080, 2008-Ohio-57, appeal 

not allowed, 118 Ohio St.3d 1434, 2008-Ohio-2595, 887 N.E.2d 1203. This Court affirmed 

Lockhart’s convictions and sentence. Id. 

{¶3} In 2009, Lockhart filed a petition for habeas relief in the U.S. District Court 

for the Southern District of Ohio which was denied and dismissed. Lockhart v. Welch, No. 

2:09-CV-443, 2011 WL 378905 (S.D. Ohio Feb. 3, 2011). 

{¶4} In 2011, Lockhart sought a writ of mandamus, which was denied by this 

Court. State ex rel. Lockhart v. Whitney, 5th Dist. Delaware No. 10 CAD 12 0094, 2011-

Ohio-2023, ¶ 4. That judgment was affirmed by the Ohio Supreme Court. State ex rel. 

Lockhart v. Whitney, 130 Ohio St.3d 95, 2011-Ohio-4896, 955 N.E.2d 994, ¶ 3. 

{¶5} In 2012, Lockhart filed a motion to “correct status of illegal sentence.” The 

motion was overruled, a decision we affirmed in State v. Lockhart, 5th Dist. Delaware No. 

13 CAA 01 0007, 2013-Ohio-3441, ¶ 10, appeal not allowed, 137 Ohio St.3d 1473, 2014-
Delaware County, Case No. 21 CAA 07 0036 3 

Ohio-176, 2 N.E.3d 268. In that appeal, we found Lockhart’s original sentence was within 

the sentencing guidelines and Lockhart’s argument was barred by res judicata. Id., 2013-

Ohio-3441, ¶ 19. 

{¶6} In 2015, Lockhart attempted to challenge his sentence via a state habeas 

petition, which was denied. State ex rel. Lockhart v. Shelton, 6th Dist. Lucas No. L-15-

1018, 2015-Ohio-1569, ¶ 10, affirmed sub nom. State ex rel. Lockhart v. Sheldon, 146 

Ohio St.3d 468, 2016-Ohio-627, 58 N.E.3d 1124. 

{¶7} In 2016, Lockhart filed a motion for resentencing which was denied by the 

trial court. In 2018, Lockhart moved the trial court to shorten his sentence by “correcting 

a clerical error.” That motion was overruled. 

{¶8} In 2020, Lockhart appealed from the trial court’s denial of his motion to 

“clarify his sentence,” arguing that the sentences for G.S.I. and rape were ordered to be 

served concurrently, thus his indefinite sentence for rape should be four years to life 

instead of ten years to life. The trial court overruled the motion by judgment entry dated 

June 2, 2020. This Court affirmed the trial court’s decision. State v. Lockhart, 5th Dist. 

Delaware No. 20 CAA 07 0027, 2021-Ohio-2418. 

{¶9} The instant appeal arises from Lockhart’s March 25, 2021 application for 

post-conviction DNA testing pursuant to R.C. 2953.72. Lockhart requested testing of one 

item of underwear collected from the victim of the sex offense in 2005. 

{¶10} In an entry filed May 10, 2021 the trial court denied the application finding 

that Lockhart failed to establish that the requested DNA evidence would be outcome 

determinative. 
Delaware County, Case No. 21 CAA 07 0036 4 

{¶11} On May 24, 2021, Lockhart filed a Motion to Reconsider the trial court’s May 

10, 2021 Judgment Entry. The trial court overruled Lockhart’s motion by Judgment Entry 

filed June 18, 2021. 

Assignments of Error 

{¶12} “I. TRIAL COURT JUDGE DAVID GORMLEY, OF THE DELAWARE 

COUNTY COURT OF COMMON PLEAS, REFUSES TO REVEAL WHOSE SALIVA IS

IN A VICTIM'S PANTIES, THAT THE STATE OF OHIO KNEW WAS IN THOSE PANTIES 

OVER A YEAR PRIOR TO APPELLANT'S TRIAL.” 

Jurisdiction 

{¶13} In the case at bar, we must address the threshold issue of whether the 

Notice of Appeal was timely filed. Even if a party does not raise the issue, this court must 

address, sua sponte, whether there is a final appealable order ripe for review. State ex 

rel. White vs. Cuyahoga Metro. Hous. Aut., 79 Ohio St.3d 543, 544, 1997-Ohio-366, 684 

N.E.2d 72. 

{¶14} An appeal as of right may be taken by the filing of a timely notice of appeal 

with the clerk of the trial court in which the judgment was entered. App.R. 3(A). The only 

jurisdictional requirement for an appeal as of right is the filing of the notice of appeal in a 

timely manner. App.R. 4(A) states: 

A party shall file the notice of appeal required by App.R. 3 within thirty 

days of the later of entry of the judgment or order appealed or, in a civil 

case, service of the notice of judgment and its entry if service is not made 

on the party within the three day rule period in Rule 58(B) of the Ohio Rules 

of Civil Procedure. 
Delaware County, Case No. 21 CAA 07 0036 5 

{¶15} The filing of a timely notice of appeal is a prerequisite to establishing 

jurisdiction in a court of appeals. Therefore, while in the general sense, this court has 

jurisdiction to hear appeals in criminal cases, that jurisdiction must be invoked by the 

timely filing of a notice of appeal. The failure to file a timely notice of appeal is a 

jurisdictional requirement that cannot be ignored. State v. Alexander, 10th Dist. Nos. 

05AP-129, 05AP-245, 2005-Ohio-5997 at ¶17. 

{¶16} In the case sub judice, the trial court’s judgment entry denying Lockhart’s 

application for post-conviction DNA testing pursuant to R.C. 2953.72 was filed May 10, 

2021. Thirty days from May 10, 2021 would be June 9, 2021. Lockhart’s Notice of Appeal 

was filed July 12, 2021, forty-two days after the trial court’s May 10, 2021 Judgment Entry 

was filed. 

{¶17} While Lockhart is entitled to a right of appeal, that right to appeal expired 

when he failed to file a notice of appeal within the time required by App.R. 4(A). Therefore, 

the court has no jurisdiction to entertain an appeal as of right from the denial of his motion 

for postconvition DNA testing. State v. Alexander, supra at ¶19. 

A motion for reconsideration filed in the trial court cannot extend time for filing an 

appeal. 

{¶18} The Supreme Court of Ohio has held that a request for reconsideration of a 

final judgment at the trial court level is a nullity, as is any judgment or final order resulting 

from such a motion. State ex rel. Pendell v. Adams Cty. Bd. of Elections, 40 Ohio St.3d 

58, 60, 531 N.E.2d 713, 715(1988), citing Pitts v. Dept. of Transp., 67 Ohio St.2d 378, 

381, 423 N.E.2d 1105(1981). Such a motion cannot be used to extend the time for filing 

a notice of appeal. See Kauder v. Kauder, 38 Ohio St.2d 265, 313 N.E.2d 797(1974). 
Delaware County, Case No. 21 CAA 07 0036 6 

These same principles have been extended to criminal cases. See Cleveland Heights v. 

Richardson, 9 Ohio App.3d 152, 458 N.E.2d 901(8th Dist. 1983); Brook Park v. Necak, 

30 Ohio App.3d 118, 506 N.E.2d 936 (8th Dist. 1986); State v. Garcia, 10th Dist. No. 

94APA11-1646, 1995 WL 259168 (May 2, 1995); State v. Jones, 10th Dist. No. 86AP779, 1987 WL 12712 (June 11, 1987); State v. Matthews, 4th Dist. No., 00CA0009, 2000-

Ohio-1994; State v. Beaudry, 6th Dist. No. L-01-1288, 2001 WL 1346113 (Nov 2, 2001); 

State v. Blackwood, 8th Dist. No. 83208, 2004-Ohio-2160; State v. Kramer, 10th Dist. No. 

03AR-633, 2004-Ohio-2646. 

{¶19} Lockhart’s motion for reconsideration was a nullity and could not extend the 

30-day deadline for filing an appeal from the trial court’s May 10, 2021 Judgment Entry. 

“Because a judgment entered on a motion for reconsideration is also a nullity, a party 

cannot appeal such a judgment.” State v. Leach, 12th Dist. Clermont No. CA2004-02-

011, 2005-Ohio-2370, citing State v. Vanelli, 9th Dist. Wayne No. 02CA0066, 2003-Ohio2717, ¶ 8. “Rather, the party must appeal from the original decision.” Hamilton v. Ebbing, 

12th Dist. Butler No. CA2011-01-001, 2012-Ohio-2250, ¶ 17. 

{¶20} Because Lockhart did not timely file his notice of appeal of the May 10, 2021 

Judgment Entry, and because the June 18, 2021 decision on Lockhart’s motion for 

reconsideration was not a final appealable order, this court lacks jurisdiction over the 

matter. See, State v. Taggart, 12th Dist. Butler No. 2020-11-117, 2021-Ohio-1350, citing 

HSBC Mtge. v. Ballard, 12th Dist. Butler No. CA2011-05-088, 2012-Ohio-2251. 
Delaware County, Case No. 21 CAA 07 0036 7 

{¶21} Based upon the foregoing analysis, this appeal is hereby dismissed. 

By Gwin, P.J., 

Hoffman, J., and 

Wise, Earle, J., concur