[Cite as State v. Flores, 2018-Ohio-790.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                    ASHTABULA COUNTY, OHIO


STATE OF OHIO,                                  :         MEMORANDUM OPINION

                 Plaintiff-Appellee,            :
                                                          CASE NOS. 2017-A-0073
        - vs -                                  :                   2017-A-0074

LUIS ANAN FLORES,                               :

                 Defendant-Appellant.           :


Criminal Appeal from the Ashtabula County Court of Common Pleas, Case Nos. 2016
CR 00071 and 2016 CR 00072.

Judgment: Appeals dismissed.


Nicholas A. Iarocci, Ashtabula County Prosecutor, Ashtabula County Courthouse, 25
West Jefferson Street, Jefferson, OH 44047-1092 (For Plaintiff-Appellee).

Luis Anan Flores, pro se, PID: A692-675, Lake Erie Correctional Institution, P.O. Box
8000, 501 Thompson Road, Conneaut, OH 44030 (Defendant-Appellant).



THOMAS R. WRIGHT, P.J.

        {¶1}     This matter is before this court on the pro se October 16, 2017 motions for

leave to file a delayed appeal, pursuant to App.R. 5(A), filed by appellant, Luis Anan

Flores. Appellant filed his notices of appeal in the trial court on the same date. The

appeals were consolidated by this court.
       {¶2}   Appellant appeals the trial court’s entries of January 9, 2017, which

sentenced him to serve a combined prison term of 6 years after he entered a plea of

guilty to robbery, grand theft of firearm, and aggravated robbery.

       {¶3}   A timely notice of appeal from the January 9, 2017 entries was due no

later than February 8, 2017, which was not a weekend or a holiday.                Therefore,

appellant’s appeal is untimely by approximately 8 months.

       {¶4}   No brief or response in opposition to the motions has been filed.

       {¶5}   App.R. 4(A)(1) states in relevant part:

       {¶6}   “* * * [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.”

       {¶7}   App.R. 5(A) provides:

       {¶8}   “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:

       {¶9}   “(a) Criminal proceedings;

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

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

       {¶12} “(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. * * *”




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          {¶13} As reasons for failing to file timely appeals, appellant asserts in his motion

that both the trial court and his trial counsel failed to advise him of his appellate rights

under Crim.R. 32. Also, appellant indicates that the clerk did not serve him with a copy

of the sentencing entries pursuant to Civ.R. 58(B).

          {¶14} However, a review of appellant’s October 25, 2016 signed “Written Plea of

Guilty and Plea Agreement” indicates on page one: “[m]y attorney has explained my

right to appeal a maximum sentence, my other limited appellate rights, and that any

appeal must be filed within 30 days of the Court’s entry of the judgment of my

sentence.”

          {¶15} Appellant’s separate contention that he has not been served with a copy

of the sentencing judgment, as required by Civ.R. 58(B), is flawed.            Crim.R. 32(C)

states, in pertinent part:

          {¶16} “(C) Judgment.      A judgment of conviction shall set forth the fact of

conviction and the sentence. * * * The judge shall sign the judgment and the clerk shall

enter it on the journal. A judgment is effective only when entered on the journal by the

clerk.”

          {¶17} Unlike Civ.R. 58(B), Crim.R. 32(C) does not require that a copy of the

sentencing judgment be served.

          {¶18} As Crim.R. 32(C) specifically prescribes that a judgment is effective when

entered on the journal, we will not look to the rules of civil procedure for guidance.

Crim.R. 57(B).




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       {¶19} The signed, written pleas of guilty reflect that appellant was clearly

advised of his appellate rights. Also, appellant was present at sentencing. Thus, we

find that appellant has failed to state a valid reason for filing his appeal beyond 30 days.

       {¶20} Therefore, it is ordered that appellant’s motions for leave to file a delayed

appeal are hereby overruled.

       {¶21} Appeals dismissed.



DIANE V. GRENDELL, J., concurs,

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


                                    ____________________




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

       {¶22} I respectfully dissent. As the majority points out, the written plea of guilty

states that appellant’s counsel explained to him his limited appellate rights having

agreed to a plea deal. However, Crim.R. 32(B)(2) requires the trial court to inform a

defendant of his or her appellate rights after imposing sentence. There is no mention of

appellant’s right to appeal in the judgment entry of sentence.

       {¶23} Mr. Flores, 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.); Article IV, Sections 1, 2, and 3 of the

Ohio Constitution (appeal “as a matter of right”). An appeal “as of right” is “[a]n appeal

to a higher court from which permission need not be first obtained.” Black’s Law

Dictionary 74 (7th Ed.2000). In Ohio, in addition to the Ohio Constitution, pursuant to



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statute, “a defendant who is convicted of or pleads guilty to a felony may appeal as a

matter of right.” R.C. 2953.08(A).

       {¶24} 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

January 9, 2017 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.

       {¶25} Mr. Flores filed a request for a delayed appeal eight months 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.

       {¶26} 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.,

State ex rel. Lapp Roofing & Sheet Metal Co., Inc. v. Indus. Comm., 117 Ohio St.3d




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179, 2008–Ohio–850, ¶12; DeHart at 192.            Consequently, strict adherence to the

appellate rules must yield when a procedural error is inadvertent, and a party or counsel

acted in good faith. See, e.g., Beck at ¶29.

       {¶27} The Staff Note to the 1994 Amendment to App.R. 5(A) also indicates that

the rule is to be given a flexible, liberal interpretation.      Prior to the amendment,

defendants were required to set forth the errors claimed and evidence relating to the

claimed errors. Id. The amendment merely retained the requirement that the would-be

appellant set forth his or her reasons for the delay. Id. In explanation, the Staff Note

provides in part:

       {¶28} “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 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.”

       {¶29} 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

the constitutional quality control for the citizens of the state of Ohio. By denying delayed




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appeals I submit we are not performing our duties to the best of our constitutional and

statutory obligation.

       {¶30} If App.R. 5(A) is to be given a flexible, liberal interpretation an appellant

should be entitled to have his case heard on a delayed appeal when there is no

prejudice to the state in the delay. Given that Mr. Flores entered a plea of guilty in this

matter the issues he could raise on appeal would be limited. Surely it would be more

cost effective for this court to consider any such alleged error, bring this matter to a

quick, final close and thus avoid the presentation of error issues to subsequent tribunals

or further filings by Mr. Flores with the trial court. Mr. Flores’ only remedy at this point is

to timely file an appeal with the Supreme Court of Ohio and ask them to appoint him

counsel. The likely effect of this court’s refusal to review the trial court’s January 8,

2018 sentencing entry on the merits is the promulgation of numerous civil appeals at the

taxpayer’s expense.




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