[Cite as State v. Chaney, 2015-Ohio-5071.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
STATE OF OHIO, : MEMORANDUM OPINION
Plaintiff-Appellee, :
CASE NO. 2015-T-0109
- vs - :
DENZIL CHANEY, :
Defendant-Appellant. :
Criminal Appeal from the Court of Common Pleas, Case No. 2014 CR 00657.
Judgment: Appeal dismissed.
Dennis Watkins, Trumbull County Prosecutor, LuWayne Annos, Assistant Prosecutor,
Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH 44481-1092
(For Plaintiff-Appellee).
Denzil Chaney, pro se, PID: A672-333, Trumbull Correctional Institution, P.O. Box 901,
5701 Burnett Road, Leavittsburg, OH 44430-0901 (Defendant-Appellant).
THOMAS R. WRIGHT, J.
{¶1} This matter is before this court upon the pro se motion for leave of
appellant, Denzil Chaney, to file a delayed appeal, pursuant to App.R. 5(A). Along with
his motion, appellant filed his notice of appeal in the trial court on October 5, 2015.
Appellant appeals from his conviction and sentence of July 10, 2015.
{¶2} A timely notice of appeal from the July 10, 2015 judgment entry was due
no later than August 10, 2015, which was not a weekend or a holiday. Therefore,
appellant’s appeal is untimely by almost two months.
{¶3} Appellee, the state of Ohio, filed its response in opposition to the motion
for delayed appeal on October 7, 2015.
{¶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} “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} As reasons for failing to file a timely appeal, appellant asserts that neither
the trial court nor his trial counsel advised him that he had a constitutional right to
appointed appellate counsel and to appeal. Appellant also indicates that he just
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became aware of his appellate rights on September 29, 2015, when an inmate informed
him. However, as appellee correctly indicates in its response in opposition to the
motion, page nine of appellant’s signed plea agreement states: “[m]y attorney has
advised me that I may only be able to appeal the imposition of a maximum sentence or
other procedural issues regarding this plea. I also understand my other limited
appellate rights that have been explained to me by the Court, and that I must file an
appeal within thirty (30) days of my sentence. I also understand that under certain
circumstances, the State may appeal my sentence.”
{¶13} In reviewing the signed plea agreement, appellant was clearly advised of
his limited appellate rights by his trial counsel and the court. Thus, appellant has not
asserted a valid reason for the delay in perfecting his appeal as of right, and therefore
he has not satisfied the threshold in App.R. 5(A).
{¶14} It is ordered that appellant’s pro se motion for leave to file a delayed
appeal is hereby overruled.
{¶15} Appeal dismissed.
DIANE V. GRENDELL, J.,
CYNTHIA WESTCOTT RICE, J.,
concur.
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