Opinion
CASE NO. 2017-L-008
04-24-2017
STATE OF OHIO, Plaintiff-Appellee, v. JERRY L. GREEN, Defendant-Appellant.
Charles E. Coulson, Lake County Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee). Jerry L. Green, pro se, PID# A690-962, Southeastern Correctional Institution, 5900 B.I.S. Road, Lancaster, OH 43130 (Defendant-Appellant).
MEMORANDUM OPINION
Criminal Appeal from the Court of Common Pleas, Case No. 14 CR 000819. Judgment: Appeal dismissed. Charles E. Coulson, Lake County Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee). Jerry L. Green, pro se, PID# A690-962, Southeastern Correctional Institution, 5900 B.I.S. Road, Lancaster, OH 43130 (Defendant-Appellant). THOMAS R. WRIGHT, J.
{¶1} This matter is before this court on Jerry L. Green's pro se motion for leave to file a delayed appeal. Along with his motion, appellant filed his notice of appeal on January 17, 2017.
{¶2} Appellant appeals the trial court's September 29, 2016 "Judgment Entry of Sentence." Appellant pleaded guilty to two counts of Aggravated Trafficking in Drugs; with Contraband/Instrumentalities and Currency Forfeiture Specifications, and one count of Possessing Criminal Tools. He was sentenced to serve a total prison term of two years; three-year driver's license suspension; and certain items were forfeited.
{¶3} A timely notice of appeal from the appealed judgment entry was due no later than October 31, 2016, not a weekend or holiday. Therefore, appellant's appeal is untimely by approximately two and one-half months.
{¶4} No brief or response in opposition to the motion for delayed appeal has been filed.
{¶5} App.R. 4(A)(1) states in relevant part:
{¶6} "* * * [A] party who wishes to appeal from an order that is final upon its entry shall file the notice of appeal required by App.R. 3 within 30 days of that entry."
{¶7} App.R. 5(A):
{¶8} "(1) After the expiration of the thirty day period provided by App.R. 4(A) for the filing of a notice of appeal as of right, an appeal may be taken by a defendant with leave of the court to which the appeal is taken in the following classes of cases:
{¶9} "(a) Criminal proceedings;
{¶10} "(b) Delinquency proceedings; and
{¶11} "(c) Serious youthful offender proceedings.
{¶12} "(2) A motion for leave to appeal shall be filed with the court of appeals and shall set forth the reasons for the failure of the appellant to perfect an appeal as of right. Concurrently with the filing of the motion, the movant shall file with the clerk of the trial court a notice of appeal in the form prescribed by App.R. 3 and shall file a copy of the notice of the appeal in the court of appeals."
{¶13} In his motion, appellant asserts as his reason for failing to file a timely appeal is that his trial counsel failed to advise him that he had a right to appeal or a right to appointment of appellate counsel.
{¶14} However, page one, paragraph four, of the March 1, 2016 "Written Plea of Guilty and Judgment Entry" indicates: "[t]he court informed me and I further understand that: I have the right to an attorney and the Court will appoint an attorney to represent me if I cannot afford one." In addition, page two, paragraph three, of the signed plea states in part: "[m]y attorney has explained my right to appeal a maximum sentence, my other limited appellate rights, and that any appeal must be filed within 30 days of the Court's entry of the judgement of my sentence."
{¶15} Thus, appellant was advised of his limited appellate rights. Because appellant has failed to state a compelling reason for delayed appeal, his motion for leave is overruled.
{¶16} Appeal dismissed. TIMOTHY P. CANNON, J., concurs, COLLEEN MARY O'TOOLE, J., dissents with a Dissenting Opinion.
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COLLEEN MARY O'TOOLE, J., dissents with a Dissenting Opinion.
{¶17} I respectfully dissent with the majority's position denying appellant's motion for a delayed appeal based on my dissenting opinions in similar matters involving App.R. 5(A). State v. Christopher, 11th Dist. Portage Nos. 2013-P-0003, 2013-P-0004, and 2013-P-0005, 2013-Ohio-1946, ¶14-22; State v. Grant, 11th Dist. Lake No. 2013-L-101, 2014-Ohio-5378, ¶16-25; State v. Gibbs, 11th Dist. Geauga No. 2014-G-3201, 2014-Ohio-5772, ¶16-25; State v. Funk, 11th Dist. Lake No. 2014-L-094, 2015-Ohio-813, ¶16-24.