State v. Meardith , 2016 Ohio 7846 ( 2016 )

[Cite as State v. Meardith, 2016-Ohio-7846.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
STATE OF OHIO, : MEMORANDUM OPINION
Plaintiff-Appellee, :
CASE NO. 2016-T-0084
- vs - :
TYLER MEARDITH, :
Defendant-Appellant. :
Criminal Appeal from the Court of Common Pleas, Case No. 2014 CR 00568.
Judgment: Appeal dismissed.
Dennis Watkins, Trumbull County Prosecutor, and LuWayne Annos, Assistant
Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH
44481-1092 (For Plaintiff-Appellee).
Tyler Meardith, pro se, PID: A673-770, Trumbull Correctional Institution, P.O. Box
901, 5701 Burnett Road, Leavittsburg, OH 44430-0901 (Defendant-Appellant).
CYNTHIA WESTCOTT RICE, P.J.
{¶1} This matter is before this court on the pro se motion for leave of appellant,
Tyler Meardith, 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 August 26, 2016. Appellant
appeals from the trial court’s entry of October 5, 2015, sentencing him to serve an
aggregate prison term of 18 years after he entered a plea of guilty to complicity to
involuntary manslaughter, complicity to aggravated burglary, complicity to felonious
assault, and complicity to aggravated robbery. All included firearm specifications.
{¶2} A timely notice of appeal from the entry was due no later than November
4, 2015, which was not a weekend or a holiday. Therefore, appellant’s appeal is
untimely by over nine months.
{¶3} On August 29, 2016, appellee, the state of Ohio, filed a motion to deny
appellant leave to appeal.
{¶4} App.R. 4(A)(1) states in relevant part:
{¶5} “* * * [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 30 days of that entry.”
{¶6} App.R. 5(A) provides:
{¶7} “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:
{¶8} “(a) Criminal proceedings;
{¶9} “(b) Delinquency proceedings; and
{¶10} “(c) Serious youthful offender proceedings.
{¶11} “(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
{¶12} In the motion, appellant asserts that he was not notified of his right to
appeal and that he had only 30 days to file a timely notice of appeal as his reason for
the delay in filing a timely appeal.
{¶13} However, as appellee argues in its motion to deny leave, page eight of
appellant’s July 1, 2015 signed guilty plea states: “My attorney has advised me that I
may only be able to appeal the imposition of a maximum sentence or other procedural
issues regarding this plea. I also understand my other limited appellate rights that have
been explained to me by the Court, and that I must file an appeal within thirty (30) days
of my sentence.”
{¶14} Appellant’s reason for filing an untimely appeal of not being told that he
could appeal has been refuted by his signed guilty plea, which advised him of his limited
appellate rights and time to appeal.
{¶15} Therefore, appellee’s motion to deny appellant’s motion for leave is
granted. Appellant’s pro se motion for leave is denied, and the appeal is dismissed.
{¶16} 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.
{¶17} 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,
3
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.
4