State v. Mattice

2016 Ohio 1498

• Court: Ohio Court of Appeals
• Decided: April 11, 2016
• Docket: 2016-P-0013
• Status: Published

Opinion

[Cite as State v. Mattice, 2016-Ohio-1498.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

PORTAGE COUNTY, OHIO

STATE OF OHIO, : MEMORANDUM OPINION

Plaintiff-Appellee, : CASE NO. 2016-P-0013 - 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).

Kimberly Anne Valenti, P.O. Box 1149, Hudson, OH 44236 (For Defendant-Appellant).

THOMAS R. WRIGHT, J.

{¶1} Before this court is the pro se motion for leave to file a delayed appeal,

pursuant to App.R. 5(A), filed by appellant Adam Mattice. Along with his motion,

appellant filed his notice of appeal in the trial court on February 22, 2016. The trial court

appointed counsel for appellant on March 1, 2016, after the appeal and motion were

filed.

{¶2} Appellant appeals from his conviction and sentence of July 3, 2012. That

entry reflects that appellant pleaded guilty to the offense of gross sexual imposition and was found to be a Tier II Sex Offender. The court sentenced him to serve five years in

prison.

{¶3} A timely notice of appeal from the July 3, 2012 judgment entry was due no

later than August 2, 2012, which is not a weekend or a holiday. Thus, appellant’s

appeal is untimely by approximately three and one-half years.

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

{¶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.”

2 {¶13} In his motion, appellant asserts that he was not informed by the trial court

or his trial counsel “what an appeal was” as his reason for failing to file a timely appeal.

That reason might justify a reasonable delay of time in filing his appeal. However, given

the length of time of almost three and one-half years before initiating an appeal, it is

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

rights.

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

appeal is hereby overruled.

{¶15} Appeal dismissed.

TIMOTHY P. CANNON, J., concurs,

COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.

____________________

COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.

{¶16} I respectfully dissent with the majority’s position denying appellant’s

motion for a delayed appeal based on my dissenting opinions in similar matters

involving App.R. 5(A). State v. Christopher, 11th Dist. Portage Nos. 2013-P-0003,

2013-P-0004, and 2013-P-0005, 2013-Ohio-1946, ¶14-22; State v. Grant, 11th Dist.

Lake No. 2013-L-101, 2014-Ohio-5378, ¶16-25; State v. Gibbs, 11th Dist. Geauga No.

2014-G-3201, 2014-Ohio-5772, ¶16-25; State v. Funk, 11th Dist. Lake No. 2014-L-094,

2015-Ohio-813, ¶16-24.