[Cite as Rocky River v. Garneck, 2013-Ohio-1565.]


                Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 99072




                              CITY OF ROCKY RIVER
                                                          PLAINTIFF-APPELLEE

                                                    vs.

          DAVID GARNEK, D.B.A. DSD ENTERPRISES
                                                          DEFENDANT-APPELLANT




                                          JUDGMENT:
                                           DISMISSED


                                     Criminal Appeal from the
                                    Rocky River Municipal Court
                                      Case No. 10 CRB 1016

        BEFORE: Keough, J., Boyle, P.J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED:                         April 18, 2013
ATTORNEYS FOR APPELLANT

Jaye M. Schlachet
Ralph T. DeFranco
Eric M. Levy
55 Public Square
Suite 1600
Cleveland, Ohio 44113

ATTORNEY FOR APPELLEE

Bryan P. O’Malley
Valore & Gordillo, L.L.P.
21055 Lorain Road
Fairview Park, Ohio 44126
KATHLEEN ANN KEOUGH, J.:

      {¶1} In this delayed appeal, defendant-appellant, David Garnek, d.b.a DSD

Enterprises (“Garnek”), appeals his misdemeanor conviction and sentence for his failure

to obtain a building permit. For the reasons set forth below, we dismiss this delayed

appeal as improvidently allowed.

                                     I. Background

      {¶2} In September 2009, Patricia Weeton hired Garnek to renovate her Rocky

River condominium to make it handicap accessible for her and her daughter, Kathy

Kuehn, who lived with her. Garnek did not obtain a city building permit for the project.

In March 2010, Weeton and Garnek disagreed about the scope of additions and changes

to the project and Garnek walked off the job, leaving the project undone. In June 2010,

the city charged Garnek with two counts of failure to obtain a building permit for the

Weeton repairs, in violation of Rocky River Codified Ordinances 1181.04 (b).

      {¶3} In February 2011, Garnek plead no contest to one count of failure to obtain

a permit, and the second count was dismissed. The Rocky River building inspector

testified at the plea hearing that Garnek had not obtained a permit until 95 days after he

was cited. The inspector testified further that he had inspected the Weeton property and

found significant electrical, plumbing, and structural code violations with Garnek’s work;

he also reported that Garnek had not done any further work on the project since his

dispute with Weeton.

      {¶4} Prior to accepting Garnek’s plea, the trial court questioned him regarding

whether he understood that a plea and finding of guilt would subject him to possible
penalties of $25 to $500 per day for each day of violation, up to 95 days, for a maximum

fine of $47,500; Garnek told the judge he so understood. Garnek pleaded no contest and

stipulated to a finding of guilt.

       {¶5} Prior to sentencing, the court heard from Ms. Kuehn regarding the extensive

problems that Garnek’s inadequate and uncompleted work had caused. She told the

court that even though she and her mother had paid Garnek $11,000 up front, “[t]here is

absolutely nothing finished in that apartment, nothing. Every job that he started, that

their company started, they didn’t finish.” The trial court then continued sentencing for

90 days to allow Garnek to remediate the code violations and complete the construction

work to mitigate his sentence.

       {¶6} On June 27, 2011, prior to sentencing, Ms. Kuehn stated that Garnek had

done no further work in the condominium since the hearing in February. Likewise, the

prosecutor stated that the condominium continued to be “in shambles” and that “not one

thing has been done to correct the problems in the unit.” Upon questioning by the judge,

defense counsel informed the court of a contractor bid of $9,000 to complete the

renovations to the condominium. The trial court then sentenced Garnek to a $4,750 fine

and ordered that he pay restitution of $9,000 to Ms. Kuehn.

       {¶7} Instead of appealing the trial court’s final judgment, in July 2011 Garnek

filed in the trial court a motion to vacate his conviction and a separate motion to stay,

reconsider, and modify his sentence. On October 19, 2011, the trial court issued a

judgment denying the motions; Garnek timely appealed from this judgment.

       {¶8} Garnek’s assignments of error, however, all related to the trial court’s June
27, 2011 final judgment, which Garnek had not appealed. In his first assignment of

error, Garnek argued that the trial court erred by failing to properly advise him of the

consequences of his plea pursuant to Crim.R. 11 and sentencing him to pay a fine in

excess of the statutory maximum for a minor misdemeanor. In his second assignment of

error, Garnek argued that the trial court erred by improperly ordering him to pay

restitution. In his third assignment of error, Garnek argued that his conviction should be

reversed because his trial counsel was ineffective. Rocky River v. Garnek, 8th Dist. No.

97540, 2012-Ohio-3079, ¶ 4 (“Garnek I”).

       {¶9} This court found that Garnek was attempting to use his appeal of the trial

court’s judgment denying his motions to vacate and to stay, reconsider, and modify his

sentence to improperly seek review of alleged errors that he had failed to timely appeal.

Id. at ¶ 5. This court held that such “bootstrapping,” that is, using a subsequent order to

indirectly and untimely appeal a prior judgment that was never appealed, is not consistent

with the appellate rules, which require a direct relationship between the judgment

appealed from and the errors presented.       Id.   Accordingly, this court held that any

arguments regarding Garnek’s plea, the court’s final judgment, his sentence, or the

effectiveness of his trial counsel were untimely. Id.

       {¶10} This court further held that the trial court was without authority to rule on

the motion to stay, reconsider, and modify Garnek’s sentence because a criminal sentence

is final upon issuance of a final order, and a trial court has no authority to reconsider its

own final judgment in a criminal case. Id. at ¶ 6. This court also held that Garnek’s

motion to vacate, which was the functional equivalent of a motion to reconsider, was a
nullity because, just as trial courts have no authority to reconsider their own final

judgment in criminal cases, they are also precluded from reentering judgment in order to

circumvent the App.R. 4(A) limitation period. Id. at ¶ 6-8. Accordingly, this court

affirmed the trial court’s judgment denying Garnek’s motions, thereby affirming Garnek’s

conviction and sentence.

       {¶11} Garnek then filed a motion for leave to file a delayed appeal from the trial

court’s final judgment, which this court granted.

                                       II. Analysis

       {¶12} In this delayed appeal, Garnek raises the same assignments of error that he

raised in his first appeal. We hold that his motion for leave to file a delayed appeal was

improvidently granted and, accordingly, dismiss the appeal.

       {¶13} App.R. 5(A), which governs appeals by leave of court in criminal cases,

states in relevant part:

       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 * * *. 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. * * *.

       {¶14} In this case, Garnek pursued his right of direct appeal in Garnek I, which

resulted in an affirmance of his conviction and sentence by this court. Therefore, he is

precluded from prosecuting another appeal of his conviction and sentence by way of a

delayed appeal. A defendant in a criminal case who has perfected and prosecuted a

direct appeal is not entitled to a second appeal by way of a delayed appeal. State v.

Malinchak, 10th Dist. No. 79AP-30, 1979 Ohio App. LEXIS 12384 (Mar. 27, 1979)
(“[T]he defendant is entitled to only one appeal, not successive appeals, and there can be

no delayed appeal where the defendant has unsuccessfully prosecuted a direct appeal.”);

State v. Weiderman, 10th Dist. No. 78AP-523, 1978 Ohio App. LEXIS 8564 (Sept. 28,

1978) (“[A] defendant is entitled to only one appeal, and there can be no delayed appeal

where the defendant has perfected and prosecuted an appeal as a matter of right.”); State

v. Slone, 10th Dist. No. 75AP-167, 1975 Ohio App. LEXIS 8429 (July 29, 1975) (“[A]

defendant is entitled to only one appeal, not successive appeals. There can ordinarily be

no delayed appeal where the defendant has unsuccessfully prosecuted a direct appeal.”)

       {¶15} Furthermore, App.R. 5(A) requires that a motion for leave to appeal must

“set forth the reasons for the failure of the appellant to perfect an appeal as of right.”

Because Garnek perfected and prosecuted an appeal as of right in Garnek I, he cannot

comply with this requirement. Malinchak, supra.        See also State v. Haynes, 111 Ohio

App.3d 244, 675 N.E.2d 1332 (10th Dist.1996) (“In this case, defendant previously

perfected an appeal as of right. Consequently, the procedure provided for in App.R.

5(A) is not available to defendant.”).

       {¶16} Garnek’s first appeal resulted in an opinion and judgment that implicitly

affirmed his conviction and sentence. Accordingly, he is not entitled to bring a delayed

appeal again contesting his conviction and sentence. Therefore, we dismiss this delayed

appeal as improvidently allowed.

       {¶17} Dismissed.

       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.
      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




KATHLEEN ANN KEOUGH, JUDGE


SEAN C. GALLAGHER, J., CONCURS (SEE SEPARATE CONCURRING OPINION);
MARY J. BOYLE, P.J., CONCURS WITH MAJORITY OPINION AND CONCURS
WITH SEPARATE CONCURRING OPINION



SEAN C. GALLAGHER, J., CONCURRING:

      {¶18} While I have concerns about the sanctions imposed on Garnek by the trial

court for a minor misdemeanor conviction, I nevertheless concur with the majority

judgment and analysis that the delayed appeal was improvidently allowed and the matter

should be dismissed.
