[Cite as State v. Gullion, 2013-Ohio-147.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
STATE OF OHIO, : MEMORANDUM OPINION
Plaintiff-Appellee, :
CASE NO. 2012-L-114
- vs - :
ROGER W. GULLION, :
Defendant-Appellant. :
Criminal Appeal from the Lake County Court of Common Pleas, Case No. 11 CR
000296.
Judgment: Appeal dismissed.
Charles E. Coulson, Lake County Prosecutor, 105 Main Street, P.O. Box 490,
Painesville, OH 44077 (For Plaintiff-Appellee).
Roger W. Gullion, pro se, PID: A604647, Belmont Correctional Institution, P.O. Box
540, St. Clairsville, OH 43950 (Defendant-Appellant).
TIMOTHY P. CANNON, P.J.
{¶1} This matter is before this court on the pro se motion of appellant, Roger
W. Gullion, for leave to file a delayed appeal pursuant to App.R. 5(A). Along with his
motion, appellant filed his notice of appeal on September 26, 2012. Appellant is
appealing the September 7, 2011 judgment issued by the Lake County Court of
Common Pleas, sentencing him to serve 20 years in prison for rape following a guilty
plea. Thus, appellant filed his notice of appeal approximately one year past the filing
deadline.
{¶2} Appellee, the state of Ohio, filed a response in opposition to appellant’s
motion on October 1, 2012. The state maintains appellant was advised of his appellate
rights and contends the reasons he submits for the cause of his delay do not justify
granting a delayed appeal.
{¶3} App.R. 5(A) states, in relevant part:
{¶4} (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:
{¶5} (a) Criminal proceedings;
{¶6} ***
{¶7} (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. *
**
{¶8} In his motion, appellant asserts his appeal is untimely due to his lack of
legal knowledge and an understanding of his appellate rights. Appellant contends his
attorney neither filed an appeal on his behalf nor advised him to file his own appeal. In
addition, appellant maintains that the prison library was not readily available to him.
{¶9} A review of the written plea of guilty establishes the trial court and
appellant’s counsel advised appellant of his appellate rights. Specifically, appellant
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acknowledged the trial court informed him and he understood that “[i]f [he] was
convicted at trial, [he] would have a right to appeal.” Appellant further acknowledged
that “[his] attorney has explained [his] right to appeal a maximum sentence, [his] other
limited appellate rights, and that any appeal must be filed within 30 days of the Court’s
entry of the judgment of [his] sentence.”
{¶10} While appellant’s reasons might explain some lapse in time in initiating his
direct appeal, they do not justify a delay of almost one year between the time of
appellant’s sentence and the filing of his motion for delayed appeal. We determine
appellant was not diligent in taking the proper steps to protect his own rights.
Therefore, we find appellant has not satisfied the requirements of App.R. 5(A) by
asserting reasons that would justify his delay in filing an appeal.
{¶11} Accordingly, it is ordered that appellant’s pro se motion for leave to file a
delayed appeal is hereby overruled.
{¶12} Appeal dismissed.
DIANE V. GRENDELL, J.,
THOMAS R. WRIGHT, J.,
concur.
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