State v. Gum
2014 Ohio 401
Ohio Ct. App.2014Background
- Gum was sentenced on November 10, 2009 in Cuyahoga C.P. No. CR-528313 on eight counts, including two one-year firearm specifications, for an aggregate eight-year term, consecutive to a separate one-year sentence in CR-527195.
- Gum filed untimely notices of appeal and was denied leave to file a delayed appeal.
- On April 11, 2013, Gum filed a pro se Crim.R. 32(B) resentencing motion arguing the trial court failed to advise him of appellate rights; the sentencing transcript allegedly contains no such advisement.
- The state conceded the error; the trial court denied Gum’s motion for resentencing.
- Gum appealed claiming the court abused its discretion by not advising appellate rights, including the right to appeal and right to counsel, and that the error prejudiced him by affecting challenges to allied-offenses and the delayed appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court abused its discretion denying Crim.R. 32(B) relief | Gum argues failure to advise appellate rights invalidated the proceedings | State concedes the error and supports denial of relief | Yes, error; remand to reinstate appeal time |
Key Cases Cited
- State v. Reynolds, 79 Ohio St.3d 158 (1997) (postconviction relief as vehicle for relief when rights violated)
- State v. Gover, 71 Ohio St.3d 577 (1995) (proper avenue is to reenter conviction judgment to reinstate appeal time)
- State v. Lynch, 2007-Ohio-4678 (8th Dist. Cuyahoga No. 88899 (2007)) (reinstating time for timely appeal through judgment reentry)