STATE OF OHIO, Plaintiff-Appellee, - vs - RONALD L. FUNK, III, Defendant-Appellant.
CASE NO. 2014-L-094
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT LAKE COUNTY, OHIO
March 9, 2015
[Cite as State v. Funk, 2015-Ohio-813.]
Criminal Appeal from the Lake County Court of Common Pleas, Case No. 10 CR 000337. Judgment: Appeal dismissed.
Ronald L. Funk, pro se, PID: A594-435, Lake Erie Correctional Institution, P.O. Box 8000, 501 Thompson Road, Conneaut, OH 44030 (Defendant-Appellant).
MEMORANDUM OPINION
TIMOTHY P. CANNON, P.J.
{¶1} This matter is before this court on the pro se motion of appellant, Ronald L. Funk, III, for leave to file a delayed appeal pursuant to
{¶2} Appellant appeals from the trial court‘s sentencing order of December 10, 2010, which indicates that he entered a plea of guilty to aggravated robbery with a
{¶3} There is no constitutional right to appeal under the United States Constitution. “[A] State is not required by the Federal Constitution to provide appellate courts or a right to appellate review at all.” Griffin v. Illinois, 351 U.S. 12, 18 (1956). A state is permitted to provide appellate review, within its law-making discretion, with only one constitutional caveat:
[A] State can, consistently with the Fourteenth Amendment, provide for differences [in appellate review] so long as the result does not amount to a denial of due process or an ‘invidious discrimination.’ * * * Absolute equality is not required; lines can be and are drawn and we often sustain them.
Douglas v. California, 372 U.S. 353, 356-357 (1963) (citations omitted).
{¶4} Likewise, the Ohio Supreme Court has continually stated that “there is no inherent right of appeal from a judgment of a court, and that such right must be conferred by Constitution or statute.” Cincinnati Gas & Elec. Co. v. Pope, 54 Ohio St.2d 12, 18 (1978) (citations omitted). The Ohio Constitution does not state who has the right to appeal; we therefore turn to Ohio‘s statutory law. E.g., Middletown v. City Comm. of Middletown, 138 Ohio St. 596, 603 (1941); see also Pope, supra, 18-19.
{¶5} The
In addition to the original jurisdiction conferred by Section 3 of Article IV, Ohio Constitution, the [appellate] court shall have jurisdiction upon an appeal upon questions of law to review, affirm, modify, set aside, or reverse judgment or final orders of courts of record inferior to the court of appeals within the district[.]
{¶6} The
{¶7}
An appeal as of right shall be taken by filing a notice of appeal * * * within the time allowed by Rule 4. Failure of an appellant to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal, but is ground only for such action as the court of appeals deems appropriate, which may include dismissal of the appeal. Appeals by leave of court shall be taken in the manner prescribed by Rule 5.
Pursuant to
{¶8} In this case, appellant did not comply with
{¶10} With regard to the second requirement, the precedent of this court is that the reason for failing to perfect an appeal as of right must be valid—i.e., the reason for delay must justify the length of time it took to initiate an appeal. See, e.g., State v. Johnson, 11th Dist. Trumbull No. 2013-T-0121, 2014-Ohio-2015, ¶6; State v. Williams, 11th Dist. Trumbull No. 2013-T-0034, 2013-Ohio-3481, ¶9. Ferrell‘s efforts to obtain leave to appeal fail on this second requirement.
{¶11} As his reason for failing to file a timely appeal, appellant asserts that: (1) the trial court failed to notify him of his right to appeal; and (2) his trial counsel also failed to advise him of his constitutional right to appeal, or, in the alternative file a timely notice of appeal.
{¶12} A review of the written plea of guilty establishes that appellant did not entirely waive his right to appeal but, instead, waived the right only as it relates to issues that may have been raised at trial. Appellant acknowledged “If I was convicted at trial, I would have a right to appeal” and further “My attorney has explained my right to appeal
{¶13} Additionally, appellant does not indicate that he requested his trial counsel to file a notice of appeal on his behalf. Assuming such a request was made, appellant does not provide any explanation as to how he was prevented from due diligence by asserting his appellate rights within the past three and one-half years.
{¶14} As such, we find that appellant‘s reasons do not adequately justify waiting over three and one-half years to initiate either a direct appeal or a motion for leave to file a delayed appeal. Therefore, his motion for leave to file a delayed appeal is hereby overruled.
{¶15} Appeal dismissed.
CYNTHIA WESTCOTT RICE, J., concurs,
COLLEEN MARY O‘TOOLE, J., dissents with a Dissenting Opinion.
STATE OF OHIO, Plaintiff-Appellee, - vs - RONALD L. FUNK, III, Defendant-Appellant.
CASE NO. 2014-L-094
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT LAKE COUNTY, OHIO
March 9, 2015
[Cite as State v. Funk, 2015-Ohio-813.]
{¶16} Mr. Funk, a pro se litigant, has a constitutional right to appeal his conviction in a criminal proceeding. See State v. Awkal, 8th Dist. Cuyahoga Nos. 98532 and 98553, 2012-Ohio-3970, ¶2 (Blackmon, A.J.);
{¶17} In cases wherein someone is found guilty and sentenced in a criminal matter and there is no prejudice to the state in the delay, a motion for delayed appeal should be granted. I suggest that we should accept the delayed appeal from the December 10, 2010 sentencing entry, and review the record before this court. Appellate Rule 5(A) provides specifically for a delayed appeal if the thirty-day deadline to file is missed. There is also no set deadline for a delayed appeal to be filed.
{¶18} Mr. Funk has filed a request for a delayed appeal three and a half years after his sentencing. The majority is not inclined to grant his request because appellant did not provide this court with an adequate reason for missing the underlying deadline for filing his original appeal. However, the mechanical enforcement of a single appellate rule should not take precedence over enforcement of the law as a whole nor the Ohio legislature‘s intent to create an appeal as of right. The majority, in emphasizing form over function, is placing a barrier in front of appellant by its strict reading of the rule.
{¶19} The Rules of Appellate Procedure are meant to provide a framework for the orderly disposition of appeals. In re Beck, 7th Dist. Belmont No. 00 BA 52, 2002-Ohio-3460, ¶29. However, ‘“[o]nly a flagrant, substantial disregard for the court rules can justify a dismissal on procedural grounds.“’ Id. at ¶28, quoting DeHart v. Aetna Life Ins. Co., 69 Ohio St.2d 189, 193 (1982). The Supreme Court of Ohio has instructed the lower courts of this state that cases are to be decided on the merits, and that the various rules of court are to be applied so as to achieve substantial justice. See, e.g.,
{¶20} The Staff Note to the 1994 Amendment to
{¶21} “Although there was also concern about the fairness of requiring usually indigent, and frequently unrepresented, criminal defendants to demonstrate (often without the benefit of a transcript) the probability of error, the primary reason for this amendment is judicial economy. Denial of leave to file a delayed appeal for failure to demonstrate the probability of error usually leads to subsequent litigation of the issue by direct appeals to the Ohio and United States Supreme Courts, petitions to vacate sentence under
R.C. 2953.21 et seq. , and appeals thereon, and/or federal habeas corpus petitions and appeals. Review of the merits by the courts of appeals upon the initial (albeit delayed) appeal would thus avoid the presentation of the probability of error issue to as many as nine subsequent tribunals.”
{¶22} The intent of the General Assembly is that courts deal with criminal cases in the most cost effective manner complying with justice. Additionally, this court has an affirmative, constitutional and statutory duty to review the trial court for error. We are
{¶23} If
{¶24} Thus, I respectfully dissent.