[Cite as State v. Grant,

.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

LAKE COUNTY, OHIO

STATE OF OHIO, : MEMORANDUM OPINION

Plaintiff-Appellee, : CASE NO. 2013-L-101 - vs - :

JAMES F. GRANT, :

Defendant-Appellant. :

Criminal Appeal from the Lake County Court of Common Pleas. Case No. 12 CR 000735.

Judgment: Appeal dismissed.

Charles E. Coulson, Lake County Prosecutor, and Alana A. Rezaee, Assistant Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee).

James F. Grant, pro se, PID: A641084, Richland Correctional Institution, 1001 Olivesburg Road, P.O. Box 8107, Mansfield, OH 44901 (Defendant-Appellant).

TIMOTHY P. CANNON, P.J.

{¶1} This matter is before this court on the pro se motion of James F. Grant for

leave to file a delayed appeal pursuant to App.R. 5(A). Along with his motion, Mr. Grant

filed his notice of appeal on October 18, 2013. Mr. Grant seeks to appeal the judgment

issued by the Lake County Court of Common Pleas, following a guilty plea, sentencing

him to prison for two counts of robbery: 24 months for Amended Count 2, a felony of the

third degree; and a mandatory eight-year term for Count 3, a felony of the second

degree. On March 29, 2013, the trial court ordered the prison terms to run concurrent with each other for a total of eight years. Thus, Mr. Grant filed his notice of appeal

nearly six months past the filing deadline.

{¶2} The state of Ohio filed a response in opposition to the motion on October

25, 2013.

{¶3} There is no constitutional right to appeal under the United States

Constitution. “[A] State is not required by the Federal Constitution to provide appellate

courts or a right to appellate review at all.” Griffin v. Illinois,

(1956). A

state is permitted to provide appellate review, within its law-making discretion, with only

one constitutional caveat:

[A] State can, consistently with the Fourteenth Amendment, provide for differences [in appellate review] so long as the result does not amount to a denial of due process or an ‘invidious discrimination.’ * * * Absolute equality is not required; lines can be and are drawn and we often sustain them.

Douglas v. California,

(1963) (citations omitted).

{¶4} Likewise, the Ohio Supreme Court has continually stated that “there is no

inherent right of appeal from a judgment of a court, and that such right must be

conferred by Constitution or statute.” Cincinnati Gas & Elec. Co. v. Pope,

(1978) (citations omitted). The Ohio Constitution does not state who has the

right to appeal; we therefore turn to Ohio’s statutory law. E.g., Middletown v. City

Comm. of Middletown,

(1941); see also

.

{¶5} The Ohio Revised Code provides, in relevant part:

In addition to the original jurisdiction conferred by Section 3 of Article IV, Ohio Constitution, the [appellate] court shall have jurisdiction upon an appeal upon questions of law to review, affirm, modify, set aside, or reverse judgmentS or final orders of courts of record inferior to the court of appeals within the district[.]

2 R.C. 2501.02. Further, “[t]he judges of the court of appeals, or a majority of such

judges, may make and publish such uniform rules of practice, for all the districts, as are

not in conflict with statute or the rules of the supreme court.” R.C. 2501.08. The

Supreme Court of Ohio has, in fact, promulgated uniform Rules of Appellate Procedure.

“An appeal of a final order, judgment, or decree of a court [see R.C. 2501.02] shall be

governed by the Rules of Appellate Procedure or by the Rules of Practice of the

Supreme Court, whichever are applicable, and, to the extent not in conflict with those

rules, this chapter.” R.C. 2505.03(C) (emphasis added).

{¶6} The Rules of Appellate Procedure provide for two types of mutually-

exclusive appeals, over which the district courts of appeal have jurisdiction: (1)

“Appeal[s] as of Right,” governed by App.R. 3 & 4; and (2) “Appeals by Leave of Court

in Criminal Cases,” governed by App.R. 5.

{¶7} App.R. 3(A) states, in relevant part and emphasis added:

An appeal as of right shall be taken by filing a notice of appeal * * * within the time allowed by Rule 4. Failure of an appellant to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal, but is ground only for such action as the court of appeals deems appropriate, which may include dismissal of the appeal. Appeals by leave of court shall be taken in the manner prescribed by Rule 5.

Pursuant to App.R. 4(A)(1), in a criminal case, “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.” (Emphasis added.)

{¶8} Mr. Grant did not comply with App.R. 3 and App.R. 4, thus his appeal is

not an “appeal as of right.” Specifically, Mr. Grant filed his notice of appeal nearly six

months after the 30-day deadline. Accordingly, Mr. Grant is attempting to obtain an

“appeal by leave of court in a criminal case,” and App.R. 5 governs.

3 {¶9} App R. 5(A)(1) provides: “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 * * * (a)

Criminal proceedings * * *.” App.R. 5(A)(2) contains four requirements an appellant

must comply with in order to obtain leave to appeal. The movant shall (1) file a motion

for leave to appeal with the court of appeals (2) that sets forth his or her reasons for

failing to perfect an appeal as of right; (3) file a notice of appeal with the clerk of the trial

court that complies with App.R. 3; and (4) “furnish an additional copy of the notice of

appeal and a copy of the motion for leave to appeal to the clerk of the court of

appeals[.]”

{¶10} With regard to the second requirement, the precedent of this court is that

the reason for failing to perfect an appeal as of right must be valid—i.e., the reason for

delay must justify the length of time it took to initiate an appeal. See, e.g., State v.

Johnson, 11th Dist. Trumbull No. 2013-T-0121,

; State v. Williams,

11th Dist. Trumbull No. 2013-T-0034,

. Mr. Grant’s efforts to obtain

leave to appeal fail on this second requirement.

{¶11} Mr. Grant’s main assertion for failing to file a timely appeal is that he “had

no knowledge of [his] rights of appeal.” However, courts have long held that ignorance

of the law does not excuse procedural inadequacies, such as the failure to file a notice

or motion in a timely manner. E.g., State v. Foti, 11th Dist. Lake No. 2009-L-163, 2010-

Ohio-5931, ¶86; State v. Crites, 11th Dist. Trumbull No. 2012-T-0065,

,

¶10.

{¶12} Mr. Grant further asserts that he was not informed of his rights of appeal

“by the court or [his] trial counsel after sentencing” and that he “was never informed that

4 his time would be [mandatory].” However, these assertions are in direct contravention

to the guilty plea Mr. Grant signed on March 29, 2013, which indicates he was

specifically advised of the following:

The Court informed me and I further understand that: * * * If I was convicted at trial, I would have a right to appeal.

I hereby state that I understand these rights and privileges and the possible consequences of a “Guilty” plea. I hereby waive and reject all of these rights.

***

My 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 [sic] of my sentence.

***

I understand for this offense(s) I do face mandatory time in prison[.]

Mr. Grant signed the written guilty plea, as did the trial court, the prosecuting attorney,

and Mr. Grant’s attorney. Further, Mr. Grant’s attorney averred that he advised Mr.

Grant “that he does face a mandatory prison term with this ‘Guilty’ plea.”

{¶13} Given the length of time of nearly six months that passed from the time of

Mr. Grant’s sentence until the filing of his motion for delayed appeal, it is evident that he

was not diligent in taking the proper steps to protect his rights. As such, we find Mr.

Grant has not provided this court, as required by App.R. 5(A), with reasons to

adequately justify waiting nearly six months to initiate a direct appeal.

{¶14} For the foregoing reasons, Mr. Grant’s motion for leave to file a delayed

appeal is hereby overruled.

{¶15} Appeal dismissed.

5 DIANE V. GRENDELL, J., concurs,

COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.

____________________

COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.

{¶16} Appellant, a pro se litigant, has a constitutional right to appeal his

conviction in a criminal proceeding. State v. Awkal, 8th Dist. Cuyahoga Nos. 98532 and

98553,

(Blackmon, A.J.); Article IV, Sections 1, 2, and 3 of the Ohio

Constitution (appeal “as a matter of right”). An appeal “as of right” is “[a]n appeal to a

higher court from which permission need not be first obtained.” Black’s Law Dictionary

74 (7th Ed. 2000). In Ohio, in addition to the Ohio Constitution, pursuant to statute, “a

defendant who is convicted of or pleads guilty to a felony may appeal as a matter of

right.” R.C. 2953.08(A).

{¶17} In cases wherein someone is found guilty and sentenced in a criminal

matter and there is no prejudice to the state in the delay, a motion for delayed appeal

should be granted. I suggest that we should accept the delayed appeal, and review the

record before this court. Appellate Rule 5(A) provides specifically for a delayed appeal

if the thirty-day deadline to file is missed. There is also no set deadline for a delayed

appeal to be filed.

{¶18} In this case, appellant has filed a request for a delayed appeal nearly six

months after his sentencing. The majority does not feel inclined to accept it, describing

appellant’s reasons for his delay as insufficient and contradicted by his plea agreement.

However, the mechanical enforcement of a single appellate rule should not take

precedence over enforcement of the law as a whole nor the Ohio legislature’s intent to

6 create an appeal as of right. The majority, in emphasizing form over function, is placing

an unnecessary barrier in front of appellant by its strict reading of the rule.

{¶19} The Rules of Appellate Procedure are meant to provide a framework for

the orderly disposition of appeals. In re Beck, 7th Dist. Belmont No. 00 BA 52, 2002-

Ohio-3460, ¶29. However, ‘“[o]nly a flagrant, substantial disregard for the court rules

can justify a dismissal on procedural grounds.’” Id. at ¶28, quoting DeHart v. Aetna Life

Ins. Co.,

(1982). The Supreme Court of Ohio has instructed the

lower courts of this state that cases are to be decided on the merits, and that the

various rules of court are to be applied so as to achieve substantial justice. See, e.g.,

State ex rel. Lapp Roofing & Sheet Metal Co., Inc. v. Indus. Comm.,

,

, ¶12;

. Consequently, strict adherence to the

appellate rules must yield when a procedural error is inadvertent, and a party or counsel

acted in good faith. See, e.g., Beck at ¶29.

{¶20} The Staff Note to the 1994 Amendment to App.R. 5(A) also indicates that

the rule is to be given a flexible, liberal interpretation. Prior to the amendment,

defendants were required to set forth the errors claimed and evidence relating to the

claimed errors.

The amendment merely retained the requirement that the would-be

appellant set forth his or her reasons for the delay.

In explanation, the Staff Note

provides in part:

{¶21} “Although there was also concern about the fairness of requiring usually

indigent, and frequently unrepresented, criminal defendants to demonstrate (often

without the benefit of a transcript) the probability of error, the primary reason for this

amendment is judicial economy. Denial of leave to file a delayed appeal for failure to

demonstrate the probability of error usually leads to subsequent litigation of the issue by

7 direct appeals to the Ohio and United States Supreme Courts, petitions to vacate

sentence under R.C. 2953.21 et seq., and appeals thereon, and/or federal habeas

corpus petitions and appeals. Review of the merits by the courts of appeals upon the

initial direct (albeit delayed) appeal would thus avoid the presentation of the probability

of error issue to as many as nine subsequent tribunals.”

{¶22} Additionally, a principal purpose of the General Assembly in reforming

Ohio's sentencing structure in Senate Bill 2, including procedure relating to appeals,

was cost containment. State v. Grider, 8th Dist. Cuyahoga No. 82072,

,

¶29, citing Griffin and Katz, Sentencing Consistency: Basic Principles Instead of

Numerical Grids: The Ohio Plan, 53 Case W.R.L.Rev. 1 (2002).

{¶23} The intent of the General Assembly is that courts deal with criminal cases

in the most cost effective manner complying with justice. Additionally, this court has an

affirmative, constitutional and statutory duty to review the trial court for error. We are

the constitutional quality control for the citizens of the state of Ohio. By denying delayed

appeals I submit we are not performing our duties to the best of our constitutional and

statutory obligation.

{¶24} If App.R. 5(A) is to be given a flexible, liberal interpretation an appellant

should be entitled to have his case heard on a delayed appeal when there is no

prejudice to the state in the delay. As appellant pleaded guilty to the crimes for which

he was sentenced, the errors he might raise on appeal are limited. Surely it would be

more cost effective for this court to consider any such alleged error, bring this matter to

a quick, final close and thus avoid the presentation of error issues to subsequent

tribunals.

{¶25} Thus, I respectfully dissent.

8