[Cite as State v. Harvey, 2026-Ohio-3154.]
IN THE OHIO COURT OF APPEALS
FIFTH APPELLATE DISTRICT
LICKING COUNTY, OHIO
STATE OF OHIO, Case No. 2026 CA 00041
Plaintiff - Appellee Opinion And Judgment Entry
-vs- Appeal from the Licking County Court of
Common Pleas, Case No. 2013 CR 00351
DUSTIN HARVEY,
Judgment: Dismissed
Defendant - Appellant
Date of Judgment Entry: August 14, 2026
BEFORE: Andrew J. King; Craig R. Baldwin; Kevin W. Popham, Judges
APPEARANCES: JENNY WELLS, Prosecuting Attorney, KENNETH W. OSWALT,
Assistant Prosecuting Attorney, for Plaintiff-Appellee; DUSTIN HARVEY, Inmate #695-656, Pro Se, for Defendant-Appellant.
Baldwin, J.
{¶1} Appellant Dustin Harvey appeals the trial court’s May 4, 2026, Judgment Entry
denying his April 2, 2026, post-conviction Motion to Seal. Appellee is the State of Ohio.
STATEMENT OF FACTS AND THE CASE
{¶2} The appellant was convicted on November 8, 2013, on four counts of rape and
seven counts of gross sexual imposition of a minor child, and was sentenced to a cumulative
prison sentence of fifteen years to life and designated a Tier III sex offender. His conviction
was affirmed by this Court in State v. Hervey, 2014-Ohio-2683, (5th Dist.); motion denied, 2014-Ohio-4414; discretionary appeal not allowed, 2015-Ohio-554. The appellant has filed a number
of post-conviction motions in the years since his conviction, which have been denied.
{¶3} On April 2, 2026, the appellant filed a Motion to Seal in which he asked the
trial court to “seal the filing, the facts and findings and the judgement [sic] regarding
[appellant’s] motion for reversal of conviction due to errors of law and possible subversive
activities by the State.” The appellant filed a Motion Requesting Reversal of Conviction on
the same day.
{¶4} On April 3, 2026, the trial court issued an order scheduling a non-oral hearing
on May 4, 2026, on the appellant’s Motion to Seal. On April 13, 2026, the appellant filed a
Motion to Supplement to which he attached a portion of the trial testimony of Nurse
Practitioner Kelly Morrison, and two “affidavits” signed by the appellant attesting to the
allegedly subversive activities of the prosecutor’s office, the appellant’s original trial counsel,
and the trial court “to be reviewed during the scheduled non-oral hearing for [sic] 5.4.26.”
The “affidavits” disputed evidence that was presented during the appellant’s 2013 trial.
{¶5} The trial court denied the appellant’s Motion to Seal on May 4, 2026, following
the non-oral hearing. The appellant filed a timely appeal in which he sets forth the following
two assignments of error:
{¶6} “I. DEFENDANT WAS DENIED A FAIR AND IMPARTIAL TRIAL DUE
TO DISINFORMATION DELIBERATELY FED TO THE JURY FROM COUNTY
PROSECUTOR, PAULA M. SAWYERS, UNDER CHIEF PROSECUTOR KENNETH
W. OSWALT, IN THE PRESENCE OF JUDGE THOMAS M. MARCELAIN.”
{¶7} “II. DEFENDANT’S TRIAL COUNSEL RENDERED INEFFECTIVE
ASSISTANCE OF COUNSEL, WHICH PREJUDICED THE DEFENDANT.”
ANALYSIS
{¶8} The appellant’s Notice of Appeal states that he is appealing “from the judgment
entry of conviction, entered in this court of the 4th day of May, 2026.” The appellant filed a
Docketing Statement in which he lists May 4, 2026, as the date of the judgment entry being
appealed; the appellant attached a copy of the trial court’s May 4, 2026, Judgment Entry
denying his Motion to Seal to his Docketing Statement.
{¶9} The arguments set forth in the appellant’s brief do not address the trial court’s
May 4, 2026, Judgment Entry denying his Motion to Seal. Instead, the appellant addresses
why he believes he did not receive a fair trial in November of 2013, and why his conviction
should be reversed. Indeed, the appellant states in the final paragraph of his brief that he
“respectfully asserts that if this is in anyway [sic] deemed successive it is only because the
proper authority refuses to acknowledge defendant’s innocence, esp. [sic] in light of clear and
concise evidence, on the record, of ineffective assistance of counsel, prosecutorial misconduct
and abuse of discretion by the Judge. Defendant also requests that this Court reverse the
conviction based on the fact defendant was denied a fair and impartial trial and was denied
the effective assistance of counsel or any other relief that this Court deems just and proper.”
{¶10} App.R. 3 addresses the procedure regarding how appeals of right are taken, and
states in pertinent part:
(D) Contents of the notice of appeal or cross-appeal. The notice of
appeal or cross-appeal must (1) specify the party or parties taking the appeal by
naming each one in the body of the notice or by using terms such as "all
plaintiffs," "the defendants," "plaintiffs A, C, and D" or "all defendants except
___;" (2) designate the judgment--or the order or the part of it--from which the
appeal is taken; and (3) name the court to which the appeal is taken. The title
of the case will stay the same as in the trial court, with the designation of the
appellant added, as appropriate. Form 1 in the Appendix of Forms is a
suggested form of a notice of appeal.
The appellant designated the trial court’s May 4, 2026, Judgment Entry denying his Motion
to Seal as the judgment from which his appeal herein has been taken. Yet none of the
arguments set forth in his appellate brief, or his response to the appellee’s brief, address the
denial of his Motion to Seal.
{¶11} In State v. Green, 2026-Ohio-738, (8th Dist.), the defendant asserted that the trial
court erred when it denied her motion to withdraw her guilty plea. However, the court of
appeals’ review of the record revealed that the defendant had not filed a motion to withdraw
in said case. The court stated:
“[The court of appeals] need not address an assignment of error
pertaining to issues outside the scope of an appeal.” State v. Briscoe, 2012-Ohio4943, ¶ 9 (8th Dist.). A notice of appeal shall “designate the judgment, order,
or part thereof appealed from.” App.R. 3(D). See State v. Schaible, 2025-Ohio5799, ¶ 13 (12th Dist.) (“An appellate court may only consider arguments
regarding matters that are properly brought before it in compliance with App.R.
3(D) . . . .”). See also State v. Walden, 2016-Ohio-258, ¶ 24 (3d Dist.), quoting
State v. Darks, 2013-Ohio-176, ¶ 6 (10th Dist.) (“ ‘[A]ssignments of error must
relate to the judgment that is the subject of the notice of appeal.’ ”). “ ‘ “An
appellate court can review only final orders, and without a final order, an
appellate court has no jurisdiction.” ’ ” State v. Dickerson, 2019-Ohio-2738, ¶ 5
(8th Dist.), quoting State v. Anderson, 138 Ohio St. 3d 264, 2014-Ohio-542, ¶ 28,
6 N.E.3d 23, quoting Supportive Solutions, L.L.C. v. Elec. Classroom of Tomorrow,
137 Ohio St. 3d 23, 2013-Ohio-2410, ¶ 10, 997 N.E.2d 490.
Id. at ¶ 14. See, also, State v. Browning, 2022-Ohio-386, ¶ 18 (10th Dist.) (“…To the extent
Browning challenges the trial court's imposition of a fine and court costs, ‘ “[w]e have
jurisdiction to review assignments of error stemming only from the judgment subject of the
notice of appeal” ’); and, Campbell v. Campbell, 2021-Ohio-2045, ¶ 13 (“ ‘[An appellate court]
ha[s] jurisdiction to review assignments of error stemming only from the judgment subject of
the notice of appeal.’ State v. Thompkins, 10th Dist. No. 07AP-74, 2007-Ohio-4315, ¶ 7, citing
App.R. 3(D). In other words, ‘ “assignments of error must relate to the judgment that is the
subject of the notice of appeal.” ’ State v. Darks, 10th Dist. No. 12AP-578, 2013-Ohio-176, ¶
6, quoting Thompkins at ¶ 7; see also State v. Smith, 6th Dist. No. L-10-1150, 2011-Ohio-5945,
¶ 3 (‘proposed assignments of error are not properly before the court because the proposed
errors do not relate to the judgment on appeal’ )”.
{¶12} An appellate court has jurisdiction to review only those assignments of error relating
to the decision of the trial court that is the subject of the notice of appeal filed by an appellant. In the
case sub judice, the assignments of error and arguments set forth in the appellant’s brief are unrelated
to the May 4, 2026, Judgment Entry denying the appellant’s Motion to Seal, which is the Judgment
Entry from which the appellant appealed, and the Judgment Entry he attached to his Docketing
Statement. As such, the appellant’s arguments related to the purported lack of evidence, prosecutorial
misconduct, ineffective assistance of counsel, and abuse of discretion are not properly before this court.
Since the appellant has failed to submit assignments of error and arguments in support thereof that
relate to the Judgment Entry from which he appealed, this Court lacks jurisdiction herein.
Accordingly, the appellant’s appeal is dismissed.
CONCLUSION
{¶13} Based upon the foregoing, the within appeal is dismissed.
{¶14} Costs to appellant.
By: Baldwin, J.
King, P.J. and
Popham, J. concur.