State v. Learn
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[Cite as State v. Learn, 2015-Ohio-2817.] IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT GEAUGA COUNTY, OHIO STATE OF OHIO, Plaintiff-Appellee, : MEMORANDUM OPINION : CASE NO. 2015-G-0023 - vs - : DOUGLAS S. LEARN, Defendant-Appellant. : : Criminal Appeal from the Geauga County Court of Common Pleas, Case No. 14 C 000068. Judgment: Appeal dismissed. James R. Flaiz, Geauga County Prosecutor, Courthouse Annex, 231 Main Street, Suite 3A, Chardon, OH 44024 (For Plaintiff-Appellee). Douglas S. Learn, pro se, PID: A662-543, Lake Erie Correctional Institution, P.O. Box 8000, 501 Thompson Road, Conneaut, OH 44030 (Defendant-Appellant). DIANE V. GRENDELL, J. {¶1} Appellant, Douglas S. Learn, filed a pro se motion for leave to file a delayed appeal on June 10, 2015, from the trial court’s January 14, 2015 judgment of conviction and sentence in the underlying criminal case. Appellee filed a response in opposition to appellant’s motion on June 16, 2015. {¶2} In the appealed judgment, the trial court noted that it had previously accepted appellant’s guilty plea to aggravated vehicular homicide; aggravated vehicular assault; vehicular assault; failure to stop after an accident; and operating a vehicle under the influence of alcohol, a drug of abuse, or a combination of them. The court sentenced appellant to serve 11 years and six months in prison and suspended his driver’s license for life. {¶3} Appellant’s notice of appeal from the trial court’s sentencing judgment was due no later than 30 days from January 14, 2015, or by February 13, 2015, which was not a weekend or a holiday. Appellant did not file his motion for delayed appeal until June 10, 2015, almost four months beyond the thirty-day deadline in App.R. 4. {¶4} If a criminal defendant fails to institute a timely appeal from the trial court’s sentencing judgment, he can only bring such an appeal at a later date if he is granted leave by the appellate court. App.R. 5(A)(1). As part of his motion for leave to pursue a delayed appeal, appellant must set forth reasons as to why he failed to comply with the thirty-day rule to file his appeal as of right. App.R. 5(A)(2). {¶5} “‘In construing the foregoing requirement of the rule, this court has held that a proper motion for leave must address two specific issues. First, the defendant must give a legitimate explanation in regard to why he failed to file his notice of appeal in a timely manner under App.R. 4(A). Second, he must provide a legitimate explanation as to why he did not submit his motion for leave within a reasonable time after the end of the thirty-day period for bringing a timely appeal.’” State v. Floyd, 11th Dist. Trumbull No. 2013-T-0097, 2014-Ohio-1676, ¶ 4, quoting State v. Rini, 11th Dist. Lake No. 2004-L-199, 2005-Ohio-936, ¶ 4. {¶6} In regard to the reasonableness of the delay, this court has stated: {¶7} ‘“Even if a defendant is not informed of his right to appeal at the time of his 2 conviction, he still has an obligation to take steps to protect his rights within a reasonable time period. Stated differently, if a defendant believes, in the months following his conviction, that an error occurred in the trial proceedings, he has the burden to either research the matter himself or obtain a new attorney to represent him. In the instant case, [the defendant] has not alleged that he took any steps in the months following his conviction to discover whether he could contest his conviction, ***.’” Rini, at ¶ 6, quoting State v. Binion, 11th Dist. Trumbull No. 2002-T-0093, ¶ 4 (Dec. 13, 2002). {¶8} In the present motion, appellant asserts as his reason for not filing a timely appeal that the trial court failed to advise him of his right to appeal and for courtappointed counsel. Appellant further indicates that under Crim.R. 32(B) the trial court is required to notify a defendant of his appellate rights. R.C. 2953.08(D)(1). {¶9} The state argues that Crim.R. 32(B)(1) or (2) does not apply since appellant pleaded guilty, and he did not have a right to appeal his sentence. In addition, the state asserts that both the prosecution and defense counsel recommended the 11 and one-half year prison sentence, which the trial court imposed; thus, the sentence was authorized by law so the trial court was not required to advise appellant of his appellate rights. {¶10} A review of appellant’s written plea of guilty reflects that he was advised of his right to have appointed counsel and his right to appeal a maximum sentence. Further, he was advised that he had 30 days to file an appeal. As this court stated in Rini, supra, even if appellant was not advised of his appellate rights when he should have been, he was still obligated to take the proper steps to protect his rights within a 3 reasonable time. {¶11} The present motion does not set forth a valid reason for appellant’s failure to timely perfect his appeal. In the absence of a legitimate explanation for the four month delay, appellant has not met the requirements of App.R. 5(A). {¶12} Therefore, appellant’s motion for leave to file a delayed appeal is overruled. It is the order and judgment of this court that this appeal is hereby dismissed. CYNTHIA WESTCOTT RICE, J., THOMAS R. WRIGHT, J., concur. 4
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