State v. Wyche , 2016 Ohio 5186 ( 2016 )

[Cite as State v. Wyche, 2016-Ohio-5186.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
STATE OF OHIO, : MEMORANDUM OPINION
Plaintiff-Appellee, :
CASE NO. 2016-T-0033
- vs - :
ELISHA DIANE WYCHE, :
Defendant-Appellant. :
Criminal Appeal from the Court of Common Pleas, Case No. 2014 CR 00633.
Judgment: Appeal dismissed.
Dennis Watkins, Trumbull County Prosecutor, and LuWayne Annos, Assistant
Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH
44481-1092 (For Plaintiff-Appellee).
Elisha Diane Wyche, pro se, PID: W093810, Dayton Correctional Institution, P.O. Box
17399, Dayton, OH 45418 (Defendant-Appellant).
DIANE V. GRENDELL, J.
{¶1} This matter is before this court on the pro se motion for leave of appellant,
Elisha Diane Wyche, to file a delayed appeal, pursuant to App.R. 5(A). Along with her
motion, appellant filed her notice of appeal in the trial court on April 4, 2016. Appellant
indicates on her notice of appeal that she is appealing from an October 13, 2015 trial
court judgment entry. However, a review of the docket reveals that the trial court entry
sentencing appellant was filed on October 22, 2015.
{¶2} In the October 22, 2015 entry, the trial court sentenced appellant to serve
a total prison term of 11 years after she entered a guilty plea to aggravated burglary,
aggravated robbery, and kidnapping, all with firearm specifications.
{¶3} A timely notice of appeal from the entry was due no later than November
23, 2015, which was not a weekend or a holiday. Therefore, appellant’s appeal is
untimely by over four months.
{¶4} Appellee, the state of Ohio, filed its objection to the motion for delayed
appeal on April 8, 2016.
{¶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) provides:
{¶8} “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.”
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{¶13} Appellant asserts as her reason for filing an untimely appeal the following:
“I was told that I couldn’t [appeal] but I was unfairly represented by my Public Defender,
we had a conflict of interest, but when I talked to my case manager, they told me I could
appeal.”
{¶14} However, as indicated in appellee’s objection to the motion, page six of
appellant’s May 26, 2015 signed guilty plea states: “My attorney has advised me that I
may only be able to appeal the imposition of a maximum sentence or other procedural
issues regarding this plea. I also understand my other limited appellate rights that have
been explained to me by the Court, and that I must file an appeal with thirty (30) days of
my sentence.”
{¶15} Appellant’s reason for filing an untimely appeal is based on not being told
that she could appeal, which is refuted by her signed guilty plea where she was clearly
advised of her limited appellate rights.
{¶16} Therefore, appellant’s motion for leave to file a delayed appeal is hereby
overruled.
{¶17} Appeal dismissed.
CYNTHIA WESTCOTT RICE, P.J., concurs,
COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.
______________________________________________
COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.
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{¶18} 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.
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