State v. Williams , 2013 Ohio 3481 ( 2013 )

[Cite as State v. Williams, 2013-Ohio-3481.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
STATE OF OHIO, : MEMORANDUM OPINION
Plaintiff-Appellee, :
CASE NO. 2013-T-0034
- vs - :
DONALD P. WILLIAMS, JR., :
Defendant-Appellant. :
Criminal Appeal from the Trumbull County Court of Common Pleas.
Case No. 2010 CR 600.
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).
Donald P. Williams, Jr., pro se, PID: A630791, Lake Erie Correctional Institution, P.O.
Box 8000, Conneaut, OH 44030 (Defendant-Appellant).
TIMOTHY P. CANNON, P.J.
{¶1} This matter is before this court on the pro se motion of appellant, Donald
P. Williams, Jr., to file a delayed appeal pursuant to App.R. 5(A). Appellant filed this
motion, along with a notice of appeal, on March 27, 2013. Appellee, the state of Ohio,
filed a response in opposition on April 4, 2013, and appellant filed a pro se reply on April
22, 2013.
{¶2} On February 17, 2012, appellant entered a plea of guilty to aggravated
vehicular homicide, aggravated vehicular assault, vehicular assault, and possession of
drugs. On June 27, 2012, the Trumbull County Court of Common Pleas sentenced
appellant to serve 16 years in prison and suspended appellant’s driver’s license for his
lifetime. The sentencing entry was docketed on July 11, 2012. It is from this entry
appellant now seeks leave to appeal; thus, it is untimely by over seven months.
{¶3} App R. 5(A) provides, in relevant part:
{¶4} (1)(a) 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 * * * [c]riminal proceedings * * *.
{¶5} (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.
(Emphasis added.)
{¶6} At the outset, we note appellant has failed to comply with App.R. 3(D),
which states that “the notice of appeal * * * shall designate the judgment, order or part
thereof appealed from[.]” Appellant did not attach a judgment entry to his notice of
appeal or otherwise provide a copy to this court. His notice of appeal states nothing
more than that he “hereby appeals * * * from the judgment of conviction entered in this
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action on June, 2012.” (sic.) There is, in fact, no judgment of conviction entered on the
trial court’s docket in “June, 2012.” However, appellant did appear before the court on
June 27, 2012, for a sentencing hearing; the entry on sentence was subsequently
docketed on July 11, 2012.
{¶7} Appellant’s main assertion for failing to file a timely appeal is that his trial
counsel advised him an appeal would not be filed because “there [was] nothing to
appeal.” Appellant further indicates he would have filed an appeal had he known of his
right to do so despite his plea of guilty. Although appellant’s argument implies he is
attempting to appeal his guilty plea, entered over one year prior to his notice of appeal,
we note this was not a final, appealable order until the entry on sentence. A “judgment
of conviction is composed of two essential elements: the adjudication of guilt and the
sentence.” State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, ¶26. Thus, taken
from the date of the entry on sentence, appellant’s appeal of March 27, 2013, is
untimely by over seven months.
{¶8} Nevertheless, given the length of time of over seven months that has
passed from the time of appellant’s sentence until the filing of his motion for delayed
appeal, it is evident that appellant was not diligent in taking the proper steps to protect
his rights. His assertion that he was unaware of his right to appeal is in direct
contravention to the guilty plea he signed, which indicates he was advised of his right to
appeal “the imposition of a maximum sentence or other procedural issues regarding this
plea[,] * * * other limited appellate rights that have been explained to me by the Court,
and that I must file an appeal within thirty (30) days of my sentence.”
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{¶9} As such, we find appellant has neither satisfied the requirement of filing a
proper notice of appeal nor has he provided this court, as required by App.R. 5(A), with
reasons to adequately justify waiting over seven months to initiate a direct appeal.
Appellant’s motion for leave to file a delayed appeal is hereby overruled.
{¶10} Appeal dismissed.
CYNTHIA WESTCOTT RICE, J., concurs,
COLLEN MARY O’TOOLE, J., dissents.
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