COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68590 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION GERALD CHURCH : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 2, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas Case No. CR-304330 JUDGMENT: DISMISSED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. THEODORE J. LESIAK, ESQ. CUYAHOGA COUNTY PROSECUTOR OBERHOLTZER, FILOUS, BY: PETER GAUTHIER, ESQ. YOUNG & LESIAK ASSISTANT COUNTY PROSECUTOR 230 S. Court Street The Justice Center P.O. Box 220 1200 Ontario Street Medina, Ohio 44258-0220 Cleveland, Ohio 44113 - 2 - DYKE, J.: Defendant-appellant, Gerald Church, appeals from an order journalized on January 30, 1995 which denied his motion for a 1 change of plea. However, a review of appellant's sole assignment of error demonstrates that he has failed to claim or argue that any errors occurred during his motion hearing. On the contrary, appellant's sole assignment of error deals exclusively with the alleged ineffective assistance of trial counsel which occurred six months earlier to wit., on June 6, 1994 when appellant originally 2 entered a plea in this case. Accordingly, appellant is utilizing the instant appeal to 1 On June 6, 1994, appellant pled guilty to one count of Theft By Deception (R.C. 2913.02) for failure to perform a $2,184.00 kitchen remodeling contract. On December 22, 1994 appellant having retained different counsel, filed a "Motion For Change of Plea [and a] Request for Hearing." The court conducted a hearing on January 20, 1995 and denied appellant's motion journalizing its denial on January 30, 1995. Such denial forms the basis of the instant appeal. 2 Appellant's sole assignment of error reads as follows: I DEFENDANT-APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT OF EFFECTIVE ASSISTANCE OF COUNSEL WHERE COUNSEL MISINFORMED DEFENDANT-APPELLANT REGARDING THE CHARGE AND FAILED TO ZEALOUSLY REPRESENT THE DEFENDANT- APPELLANT. The issue he presents for review reads as follows: Defendant-appellant is denied his constitutional right of effective assistance of counsel where counsel misinformed Defendant-appellant as to the effect of pleading guilty to the indictment and by failing to proceed to trial where defenses to the indictment are available. - 3 - improperly seek review of alleged errors which occurred on June 6, 1994 rather than utilizing the appeal to seek review of errors which occurred on January 30, 1995. This type of "bootstrapping" to wit., the utilization of a subsequent order to indirectly and untimely appeal a prior order (which was never directly appealed) is procedurally anomalous and inconsistent with the appellate rules which contemplate a direct relationship between the order from which the appeal is taken and the error assigned as a result of that order. See, Appellate Rules 3(D), 4(A), 5 and 16(A)(3). App.R. 3(D) provides in relevant part that "[t]he notice of appeal shall ... designate the judgment, order or part thereof appealed from ... ." As discussed supra, appellant has noticed the court's January 30, 1995 order. However, he anomalously appeals 3 the court's June 6, 1994 order. Also, any errors dealing with the competency of counsel should have been raised by direct appeal within thirty days of the entry of appellant's plea, to wit., within 30 days of the court's June 6, 1994 judgment entry. See, App.R. 4(A). See, also, App.R. 5. In addition, App.R. 16(A)(3) provides that "[t]he appellant shall include in its brief ... : A statement of the assignments of error presented for review, with reference to the place in the record where each error is reflected." Appellant's noticing of the 3 See, also Parks v. Baltimore & Ohio R.R. (1991), 77 Ohio App.3d 426 wherein we held that a court of appeals lacks jurisdiction to review a judgment or order which is not designated in the notice of appeal. - 4 - court's January 30, 1995 order requires that he refer to the transcript generated during his motion hearing. However, his assignment of error requires that he improperly refer to the transcript generated during his plea hearing. Moreover, since appellant has failed to properly brief an assignment of error in this appeal, we are precluded from simply affirming the trial court's order by App.R. 12(B), Judgment as a matter of law, which provides in relevant part that: When the court of appeals determines that the trial court committed no error prejudicial to the appellant in any of the particulars assigned and argued in appellant's brief and that the appellee is entitled to have the judgment or final order of the trial court affirmed as a matter of law, the court shall enter judgment accordingly. * * * In summary, appellant gives notice that he appealing from proceedings which occurred on January 30, 1995. However, he assigns as error counsel's representation which occurred on June 6, 1994. Hence, although appellant has filed a timely appeal, he has failed to brief his appeal in a manner which is consistent with the appellate rules. Accordingly, such appeal is dismissed. - 5 - It is ordered that appellee recover of appellant its costs herein taxed. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. SPELLACY, P.J., AND MCMONAGLE, J., CONCUR. ANN DYKE JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .