State v. Curley

2019 Ohio 186

• Court: Ohio Court of Appeals
• Decided: January 22, 2019
• Docket: 2018-P-0088
• Status: Published

Opinion

[Cite as State v. Curley, 2019-Ohio-186.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

PORTAGE COUNTY, OHIO

STATE OF OHIO, : MEMORANDUM OPINION

Plaintiff-Appellee, : CASE NO. 2018-P-0088 - vs - :

KENNETH D. CURLEY, JR., :

Defendant-Appellant. :

Criminal Appeal from the Court of Common Pleas, Case No. 2015 CR 00168.

Judgment: Appeal dismissed.

Victor V. Vigluicci, Portage County Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).

Kenneth D. Curley, Jr., pro se, PID: A673-318, Marion Correctional Institution, P.O. Box 57, 940 Marion-Williamsport Road, Marion, OH 43302 (Defendant-Appellant).

CYNTHIA WESTCOTT RICE, J.,

{¶1} This matter is before this court on the pro se motion for leave of appellant,

Kenneth D. Curley, Jr., to file a delayed appeal, pursuant to App.R. 5(A). Along with his

motion, appellant filed his notice of appeal in the trial court on November 26, 2018.

{¶2} Appellant appeals from his conviction and sentence of September 15,

2015. That entry reflects that appellant pleaded guilty to aggravated robbery,

aggravated burglary, and kidnapping. The court sentenced him to serve 14 years in

prison. {¶3} A timely notice of appeal from the September 15, 2015 judgment entry

was due no later than October 15, 2015, which is not a weekend or a holiday. Thus,

appellant’s appeal is untimely by over three years.

{¶4} No brief or memorandum in opposition to appellant’s motion has been

filed.

{¶5} App.R. 4(A)(1) states, in part:

{¶6} “* * * [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 thirty days of that entry.”

{¶7} App.R. 5(A) provides:

{¶8} “(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:

{¶9} “(a) Criminal proceedings;

{¶10} “(b) Delinquency proceedings; and

{¶11} “(c) Serious youthful offender proceedings.

{¶12} “(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.”

{¶13} In his motion, appellant asserts that he was not informed by the trial court

or his trial counsel of his constitutional rights, including his right to appeal and for

2 appointed counsel. He contends that he does not understand the law or the appeal

process.

{¶14} While appellant’s reasons might justify a reasonable delay of time in filing

his appeal, given the length of time of over three years before initiating an appeal, it is

evident that appellant was not diligent in taking the proper steps to protect his own

rights.

{¶15} Accordingly, it is ordered that appellant’s motion for leave to file a delayed

appeal is hereby overruled.

{¶16} Appeal dismissed.

DIANE V. GRENDELL, J.,

TIMOTHY P. CANNON, J.,

concur.