[Cite as State v. Cretella, 2016-Ohio-7448.]


                                     IN THE COURT OF APPEALS

                                 ELEVENTH APPELLATE DISTRICT

                                      TRUMBULL COUNTY, OHIO


STATE OF OHIO,                                   :      MEMORANDUM OPINION

                 Plaintiff-Appellee,             :
                                                        CASE NO. 2016-T-0068
        - vs -                                   :

CHRISTOPHER MARTIN CRETELLA,                     :

                 Defendant-Appellant.            :


Criminal Appeal from the Trumbull County Court of Common Pleas.
Case No. 2015 CR 00383.

Judgment: Appeal dismissed.


Dennis Watkins, Trumbull County Prosecutor, and Charles L. Morrow, Assistant
Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH
44481-1092 (For Plaintiff-Appellee).

Christopher Martin Cretella, pro se, PID: A681-379, Lake Erie Correctional Institution,
P.O. Box 8000, 501 Thompson Road, Conneaut, OH 44030 (Defendant-Appellant).



TIMOTHY P. CANNON, J.

        {¶1}     On July 11, 2016, appellant, Christopher Martin Cretella, filed a pro se

motion for leave to file a delayed appeal, pursuant to App.R. 5(A).       Along with his

motion, appellant filed his notice of appeal with the trial court. Appellant appeals from

the trial court’s sentencing entry of March 3, 2016.

        {¶2}     A timely notice of appeal was due no later than April 4, 2016, which was

not a weekend or a holiday. Thus, the appeal is untimely by almost three months.
       {¶3}   Appellee, the state of Ohio, filed a response in opposition to the motion for

delayed appeal on July 20, 2016. Appellee filed an additional response on July 22,

2016, which included the trial court’s finding on appellant’s guilty plea. Appellant filed a

pro se reply to the responses on August 19, 2016.

       {¶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}   “(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:

       {¶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.”

       {¶12} Appellant asserts the following in his motion: “even though the court

complied with Crim.R. 32 at the time of sentencing, the court nor did counsel informed

(sic) Appellant of his right to withdraw his plea for the failure to impose the two and half

(sic) (2½) years agreed upon sentence, and when I spoke with counsel he said




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nothing.” Appellant further adds “[s]o I have no choice but to appeal for a breach of the

plea agreement of a promised two and half (sic) (2½) yr. sentence.”

       {¶13} In response, appellee asserts that there is no right to withdraw one’s guilty

plea. Also, appellant has not provided any legal argument or authority which supports

that there is a right, let alone a right to be advised by counsel or the trial court. Further,

appellee indicates that appellant falsely claims in his motion that he was promised a two

and one half year sentence. Appellee contends that the allegation is meritless, and

there is no evidence to support it. Page 7 paragraph 2 of appellant’s guilty states:

“[t]his agreement reflects the entire agreement between the State of Ohio and me. No

other promises or representations have been made to me.”

       {¶14} Appellant’s primary responsibility in moving for an App.R. 5(A) motion for

delayed appeal is to provide reasons for his delay in filing an untimely appeal.

Appellant asserts that he was not advised of his right to withdraw his plea and that there

was a failure to impose an agreed upon two and one half year sentence which gave him

no choice but to appeal. As appellee correctly argues, not only has appellant failed to

offer any evidence or authority to support his allegations, but the allegations are not

reasons for his failure to perfect a timely appeal.

       {¶15} Thus, appellant’s pro se motion for leave to file a delayed appeal is hereby

overruled, and the appeal is hereby dismissed.



DIANE V. GRENDELL, J., concurs,

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


                                 ____________________



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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.




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