State v. Binion
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COURT OF APPEALS ELEVENTH DISTRICT TRUMBULL COUNTY, OHIO JUDGES STATE OF OHIO, Plaintiff-Appellee, HON. WILLIAM M. O NEILL, P.J., HON. ROBERT A. NADER, J., HON. DIANE V. GRENDELL, J. - vs CASE NO. 2001-T-0119 STEVEN A. BINION, DISSENTING OPINION Defendant-Appellant. O NEILL, P.J. {¶1} The majority focuses on the timing of Binion s delayed appeal, which was almo two years late. The majority states that the two-year delay indicates Binion was not diligent i taking the steps to protect his rights. I disagree. Binion was in prison. Binion claims he had n knowledge of the Rules of Appellate Procedure, and essentially that he was unaware that he ha a right to appeal his sentence. If Binion did not initially know he had the right to appeal, h would have had limited ways of discovering that right while he was in prison. {¶2} When any party files a motion for leave to file a delayed appeal, they are, b definition, late. If a party is only one day late, they still must file the same document that Binio filed here. How late a party files is inconsequential. The relevant inquiry is whether the part was adequately advised of their right to appeal. 2 {¶3} After imposing sentence in a serious offense, the court shall advise the defendan of the defendant s right, where applicable, to appeal or to seek leave to appeal the sentenc imposed. Crim.R. 32(B)(2). The court must then also advise the defendant of the following pursuant to Crim.R. 32(B)(3): {¶4} (a) That if the defendant is unable to pay the cost of an appeal, the defendant ha the right to appeal without payment; {¶5} (b) That if the defendant is unable to obtain counsel for an appeal, counsel wi be appointed without cost; {¶6} (c) That if the defendant is unable to pay the costs of documents necessary to a appeal, the documents will be provided without cost; and {¶7} (d) That the defendant has a right to have a notice of appeal timely filed on his o her behalf. {¶8} Binion did not provide this court with a transcript of the sentencing hearing Therefore, there is no way to determine whether the sentencing court properly advised Binion o his rights regarding the appeal of his sentence. Had Binion provided this court with a transcrip showing he was not advised of his rights to appeal, I would grant his motion. This sam situation was recently before the Ninth Appellate District, which granted a party leave to file delayed appeal, when the party provided the court with a transcript of the sentencing hearin showing that he had not been advised of his rights to appeal pursuant to Crim.R. (B)(2). State Norris (Nov. 14, 2001), Summit App. No. 20515, unreported, 2001 Ohio App. LEXIS 5070, 3 *3. In Norris, nearly eighteen months passed between the sentencing date and the time Norr filed his motion for delayed appeal. Id. at *1-3. {¶9} Binion did file a motion for preparation of the transcript of the sentencing hearing However, this transcript was never created, because Binion had not yet been granted leave to fi a delayed appeal. This placed Binion in a Catch 22 scenario. He cannot get the transcrip unless his motion for delayed appeal is granted, and he can not prove he is entitled to a delaye appeal without the transcript. {¶10} I would not grant Binion s motion for delayed appeal at this time. Without transcript, there is nothing to prove that Binion was or was not advised of his rights regardin appeal. I would, however, grant Binion s motion for production of the transcript of th sentencing hearing. Then, if the transcript does not indicate that the court specifically advise Binion of his rights regarding appeal, Binion could submit the transcript to this court along wit his renewed motion for leave to file a delayed appeal. _______________________________________ PRESIDING JUDGE WILLIAM M. O NEILL
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