State v. Watson
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[Cite as State v. Watson, 2001-Ohio-3335.] STATE OF OHIO, MAHONING COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT STATE OF OHIO, PLAINTIFF-APPELLEE, ) ) CASE NO. 01 C.A. 112 - VS - ) DWAYNE A. WATSON, ) OPINION AND JOURNAL ENTRY DEFENDANT-APPELLANT. ) CHARACTER OF PROCEEDINGS: Application for Delayed Appeal JUDGMENT: Application Denied Appeal Dismissed APPEARANCES: For Plaintiff-Appellee: Attorney Paul J. Gains Mahoning County Prosecutor Mahoning County Courthouse 120 Market Street Youngstown, Ohio 44503 For Defendant-Appellant: Dwayne A. Watson, Pro Se #234-265 Grafton Correctional Inst. 2500 S. Avon-Belden Rd. Grafton, Ohio 44044 JUDGES: - 2 - Hon. Gene Donofrio Hon. Joseph J. Vukovich Hon. Mary DeGenaro Dated: June 28, 2001 PER CURIAM. {¶1} This matter arises from defendant-appellant, Dwayne A. Watson s for Leave to File a Delayed Appeal pursuant to App.R. 5(A). On June 4, appellant pled guilty to Felonious Assault, Aggravated Robbery and Kidnappin was sentenced to concurrent terms of not less than 11 nor more than 25 ye actual incarceration. {¶2} No timely appeal as of right was taken in this case Whether to grant or refuse leave to file a delayed appeal is with sound discretion of the appeals court. 283. See State v. McGahan (1949), 86 Ohi A delayed appeal should be granted where it appears on the face o record the overruling of such motion would result in a miscarriage of ju See State v. Bednarik (1954), 101 Ohio App. 339. In this case the deni appellant s motion for leave to file a delayed appeal does not result miscarriage of justice. {¶3} Appellant was sentenced almost ten years ago. attempted in this case. No direct appeal wa Even a pro se appellant must take some affirmative to protect his rights in these matters. In the case of State v. Riddick ( 72 Ohio St.3d 88, the Ohio Supreme Court, in dealing with an applicatio reopening an appeal, stated: {¶4} Lack of effort or imagination, and ignorance of the law, are no circumstances and do not automatically establish good cause for failure t timely relief. {¶5} App.R. 5 governs the procedure for granting a motion for delayed in criminal cases. That rule states, in relevant part: - 3 - {¶6} (A) Motion by defendant for delayed appeal. After the expirat the thirty day period provided by App.R. 4(A) for the filing of a notice of as of right in criminal cases, an appeal may be taken only by leave of the to which the appeal is taken. A motion for leave to appeal shall be file the court of appeals and shall set forth the reasons for the failure o appellant to perfect an appeal as of right. Concurrently with the filing motion, the movant shall file with the clerk of the trial court a notice of in the form prescribed by App.R. 3 and shall file a copy of the notice o appeal in the court of appeals. The movant also shall furnish an additiona of the notice of appeal and a copy of the motion for leave to appeal to the of the court of appeals who shall serve the notice of appeal and the motion the prosecuting attorney. {¶7} * * * {¶8} (D) Determination of the motion. Except when required by the cou motions shall be determined by the court of appeals on the documents filed w formal hearing or oral argument. {¶9} In this case appellant has not set forth any reason for having fai perfect a timely appeal, nor has he submitted any document or evidence from his failure to timely file his appeal of right could be deduced. {¶10} For the reasons stated above, appellant has not established good for his delayed appeal and said application is denied. {¶11} Costs taxed against appellant. onofrio, J., concurs. ukovich, J., concurs. eGenaro, J., concurs. Appeal dismissed.
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