State v. Rock

2016 Ohio 7445

• Court: Ohio Court of Appeals
• Decided: October 24, 2016
• Docket: 2016-L-088
• Status: Published

Opinion

[Cite as State v. Rock, 2016-Ohio-7445.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

LAKE COUNTY, OHIO

STATE OF OHIO, : MEMORANDUM OPINION

Plaintiff-Appellee, : CASE NO. 2016-L-088 - vs - :

DAVID V. ROCK, :

Defendant-Appellant. :

Criminal Appeal from the Court of Common Pleas, Case No. 1997 CR 000363.

Judgment: Appeal dismissed.

Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee).

David V. Rock, pro se, PID: A663-040, Mansfield Correctional Institution, P.O. Box 788, 1150 North Main Street, Mansfield, OH 44901 (Defendant-Appellant).

DIANE V. GRENDELL, J.

{¶1} On August 22, 2016, appellant, David V. Rock, pro se, filed a Motion for

Leave to File a Delayed Appeal pursuant to App.R. 5(A).

{¶2} No notice of appeal was filed, and no judgment entry for which appellant is

appealing has been provided. However, appellant references his conviction and

sentence in his motion. {¶3} A review of the trial court docket reflects that appellant was convicted and

sentenced on April 3, 1998, of driving under the influence of alcohol or drugs and

unauthorized use a motor vehicle, after entering a plea of guilty to those charges.

{¶4} Appellee, the state of Ohio, filed a response in opposition to appellant’s

motion for leave to file a delayed appeal on August 26, 2016.

{¶5} App.R. 5(A) provides:

{¶6} “(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:

{¶7} “(a) Criminal proceedings;

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

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

{¶10} “(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. * * *.” (Emphasis added.)

{¶11} Appellant has not complied with App.R. 5(A) because he has 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.

2 {¶12} Further, in addition to the procedural flaws, we note that an appeal from

the trial court’s entry of April 3, 1998, would have been due to be filed no later than May

4, 1998. Even if appellant had filed a delayed appeal without the procedural

deficiencies, the reasons he has asserted in his motion for delayed appeal do not justify

a delay of over 18 years in filing his appeal. In addition, appellee asserts in its

opposition to the motion that appellant’s reason of not being advised of his appellate

rights and not being aware of his appellate options is completely untrue because

appellant perfected a timely appeal from another trial court case. In State v. Rock, 11th

Lake Dist. No. 2015-L-047, 2015-Ohio-4639, appellant appealed from a different Lake

County case in which he entered a plea of guilty to and was convicted of OVI. Appellant

also filed a timely appeal, pro se, in February 2003 from a January 16, 2003 trial court

entry in State v. Rock, 11th Dist. Lake No. 2003-L-031, which was sua sponte

dismissed by this court on June 30, 2003. Also, appellant currently has an appeal

pending with this court from another trial court case in 11th Dist. Lake No 2016-L-011.

As evidenced by appellant’s appellate history, he has some knowledge of the appellate

process and his rights.

{¶13} In light of the foregoing, appellant’s motion for leave to file a delayed

appeal is overruled.

{¶14} This matter is dismissed.

CYNTHIA WESTCOTT RICE, P.J., concurs,

THOMAS R. WRIGHT, J., concurs in judgment only.