State v. Pavisich

[Cite as State v. Pavisich, 2015-Ohio-4545.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY, OHIO
STATE OF OHIO, : MEMORANDUM OPINION
Plaintiff-Appellee, :
CASE NO. 2015-P-0037
- vs - :
JAMES PAVISICH, :
Defendant-Appellant. :
Criminal Appeal from the Court of Common Pleas, Case No. 2011 CR 0349.
Judgment: Appeal dismissed.
Victor V. Vigluicci, Portage County Prosecutor, 241 South Chestnut Street, Ravenna,
OH 44266 (For Plaintiff-Appellee).
James Pavisich, pro se, PID: A604-607, Hocking Unit, P.O. Box 59, 16759 Snake
Hollow Road, Nelsonville, OH 45764 (Defendant-Appellant).
DIANE V. GRENDELL, J.
{¶1} This matter is before this court on the pro se motion for leave of appellant,
James Pavisich, to file a delayed appeal, pursuant to App.R. 5(A). Along with his
motion, appellant filed his notice of appeal on May 26, 2015. Appellant appeals from his
conviction and sentence of September 2, 2011.
{¶2} A timely notice of appeal from the September 2, 2011 sentencing entry
was due no later than October 3, 2011, which was not a weekend or a holiday.
Appellant’s notice of appeal and motion for leave to appeal were not filed until May 26,
2015, over three and one-half years beyond the due date.
{¶3} No brief or response in opposition to the motion has been filed.
{¶4} We would first note that this is appellant’s second attempt at filing a
motion for leave to file a delayed appeal. In his first attempt, in State v. Pavisich, 11th
Dist. Portage No. 2014-P-0028, 2014-Ohio-5313, the motion for leave was filed over
two and one-half years after appellant’s conviction and sentence. The motion was
overruled by this court on December 1, 2014, for appellant’s failure to comply with
App.R. 5(A) by filing a notice of appeal concurrently with the filing of a motion for leave
to appeal.
{¶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
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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} As reasons for his failure to timely perfect his appeal as of right, appellant
generally asserts that he is “cognitively impaired—unable to ratiocinate in realtime (sic).”
He further indicates that he “only recently was able to enlist the assistance of certain
individuals willing to assist [him], who are empathetic and trained in aspects of law.”
{¶14} Upon consideration, we find that appellant’s reasons fail to justify both his
first delay of over two and one-half years to initiate a delayed appeal and now his
second, present attempt in filing his notice of appeal over three and one-half years after
his conviction and sentence.
{¶15} For the foregoing reasons, appellant’s pro se motion for leave to file a
delayed appeal is hereby overruled.
{¶16} Appeal dismissed.
THOMAS R. WRIGHT, J., concurs,
COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.
__________________________________________
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,
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2013-P-0004, 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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