[Cite as State v. Green, 2016-Ohio-1012.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                   ASHTABULA COUNTY, OHIO


STATE OF OHIO,                                  :       MEMORANDUM OPINION

                 Plaintiff-Appellee,            :
                                                        CASE NO. 2015-A-0066
        - vs -                                  :

CHARLES T. GREEN,                               :

                 Defendant-Appellant.           :


Criminal Appeal from the Court of Common Pleas, Case No. 2011 CR 00371.

Judgment: Appeal dismissed.


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

Charles T. Green, pro se, PID: A633-471, Belmont Correctional Institution, P.O. Box
540, 68518 Bannock Road, St. Clairsville, OH 43950 (Defendant-Appellant).



THOMAS R. WRIGHT, J.,

        {¶1}     Before this court is appellant, Charles T. Green’s, delayed appeal and

motion for delayed appeal. Appellant appeals the November 29, 2012 entry sentencing

him to a four-year prison term and finding him to be a Tier II Sex Offender.

        {¶2}     A timely notice of appeal was due no later than December 31, 2012, which

is not a weekend or a holiday. App.R.4(A). Appellant’s notice of appeal was not filed

until November 23, 2015, almost three years beyond the due date.
       {¶3}   Appellee, the state of Ohio, filed a response.

       {¶4}   App.R. 4(A)(1) states, in 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} In his motion, appellant asserts the following as his reasons for failing to

perfect a timely appeal: 1) that he is indigent; 2) his trial counsel told him that he was

going to file an appeal for him; 3) he was unaware that the trial court failed to make the

necessary findings to impose consecutive sentences; 4) if not for the trial court’s

negligence, he would have timely appealed his case.

       {¶13} Given the length of time of almost three years that have passed since

appellant’s conviction and sentence and the filing of his notice of appeal and motion for




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delayed appeal, it is evident that appellant was not diligent in taking the proper steps to

protect his own rights.

       {¶14} Accordingly, it is ordered that appellant’s pro se motion for leave to file a

delayed appeal is hereby overruled and the appeal is dismissed.



TIMOTHY P. CANNON, J., concurs,

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



                                 ____________________



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


       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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