State v. Mattice
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[Cite as State v. Mattice, 2015-Ohio-5534.] IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY, OHIO STATE OF OHIO, Plaintiff-Appellee, : MEMORANDUM OPINION : CASE NO. 2015-P-0078 - vs - : ADAM MATTICE, : Defendant-Appellant. : Criminal Appeal from the Court of Common Pleas, Case No. 2012 CR 0135. Judgment: Appeal dismissed. Victor V. Vigluicci, Portage County Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee). Adam Mattice, pro se, PID: A630-496, Belmont Correctional Institution, P.O. Box 540, 68518 Bannock Road, St. Clairsville, OH 43950 (Defendant-Appellant). THOMAS R. WRIGHT, J. {¶1} On November 9, 2015, appellant, Adam Mattice, pro se, filed with this court a Motion for Leave to File a Delayed Appeal pursuant to App.R. 5(A). No notice of appeal was filed simultaneously with the trial court as required by App.R. 5(A). Also, there is no indication in the motion as to which entry appellant appeals from, and no judgment entry is attached to appellant’s motion. A review of the trial court docket reflects that appellant was convicted and sentenced on July 3, 2012, and his motion to withdraw his guilty plea was denied on June 17, 2015. {¶2} App.R. 5(A) provides: {¶3} “(1) 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: {¶4} “(a) Criminal proceedings; {¶5} “(b) Delinquency proceedings; and {¶6} “(c) Serious youthful offender proceedings. {¶7} “(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 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. The movant also shall 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 who shall serve the notice of appeal and the motions upon the prosecuting attorney.” (Emphasis added.) {¶8} In the present case, appellant has not complied with App.R. 5(A) because he failed to file a notice of appeal in the trial court concurrently with the filing of his motion for leave to appeal. See State v. Fisher, 46 Ohio App.2d 279 (1975). In addition, appellant has not complied with Loc.R. 3(D)(2) of this court by attaching to such notice of appeal a copy of the judgment entry being appealed. {¶9} In light of the foregoing, appellant’s present motion is procedurally defective. 2 {¶10} We note that appellant is not barred from filing a new motion for leave to appeal along with a notice of appeal that complies with the Ohio Rules of Appellate Procedure and the local rules of this court. {¶11} Accordingly, it is ordered that appellant’s pro se motion for leave to file a delayed appeal is hereby overruled. {¶12} Appeal dismissed. TIMOTHY P. CANNON, P.J., COLLEEN MARY O’TOOLE, J., concur. 3
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