State v. Carter , 2021 Ohio 2909 ( 2021 )

[Cite as State v. Carter, 2021-Ohio-2909.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. Nos. 29524
29525
Appellee
v.
APPEAL FROM JUDGMENT
KEVIN CARTER ENTERED IN THE
COURT OF COMMON PLEAS
Appellant COUNTY OF SUMMIT, OHIO
CASE Nos. CR 18 07 2451
CR 18 08 2643(A)
DECISION AND JOURNAL ENTRY
Dated: August 25, 2021
HENSAL, Presiding Judge.
{¶1} Kevin Carter appeals from the judgments of the Summit County Court of
Common Pleas in these consolidated appeals. This Court affirms the judgment in case number
29524 (lower court case number CR-2018-07-2451) and dismisses the attempted appeal in case
number 29525 (lower court case CR-2018-08-2643-A).
I.
{¶2} In relation to events of July 6, 2018, Mr. Carter was indicted in August 2018, in
case CR-2018-08-2643-A, on one count of aggravated robbery with two accompanying
specifications, one count of kidnapping with two accompanying specifications, one count of
felonious assault with two accompanying specifications, and one count of having weapons while
under disability. In November 2018, a supplemental indictment was filed adding additional
specifications, one count of burglary with an accompanying specification, and an additional
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count of having weapons while under disability (“count ten”) with an accompanying
specification.
{¶3} The matter proceeded to a jury trial. The jury found Mr. Carter not guilty of
burglary and the accompanying specification and guilty of count ten and the accompanying
specification. The jury was unable to reach a verdict on the remaining counts. The trial court
then held a sentencing hearing as to count 10 and the accompanying specification, sentencing
Mr. Carter to a total of seven years and six months. The trial court issued a judgment entry
reflecting the same. The remaining counts were retried on April 22, 2019, along with the counts
in case CR-2018-07-2451, which involved events from July 12, 2018.
{¶4} The jury found Mr. Carter guilty of the remaining counts in CR-2018-08-2643-A,
aside from the felonious assault count, which was dismissed. The jury also found Mr. Carter
guilty of the three counts at issue in case CR-2018-07-2451. The trial court sentenced Mr. Carter
to 20 years in prison to be served consecutively to count 10 and consecutively to the sentence
imposed in case CR-2018-07-2451. The prison sentence from both cases totaled 41 and one-half
years.
{¶5} While Mr. Carter filed notice of appeals in both cases, he has only raised
assignments of error relating to case CR-2018-08-2643-A (case number 29525). Accordingly,
this Court affirms the trial court’s judgment in case number 29524 (CR-2018-07-2451). See
State v. Lopane, 9th Dist. Summit Nos. 29245, 29246, 2019-Ohio-4660, ¶ 4, 23.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT FAILED TO ISSUE A FINAL, APPEALABLE ORDER
AS THE MANNER OF CONVICTIONS ARE STATED IN TWO SEPARATE
DOCUMENTS, IN VIOLATION OF THE ONE DOCUMENT RULE UNDER
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CRIM.R. 32(C), AND THEREFORE THIS COURT DOES NOT HAVE
JURISDICTION TO CONSIDER AN APPEAL FROM THIS CASE.
{¶6} Mr. Carter argues in his first assignment of error that the trial court failed to enter
a final, appealable order in CR-2018-08-2643-A (case number 29525), as the trial court violated
the one document rule set forth in State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, ¶ 17.
{¶7} “In entering a final appealable order in a criminal case [pursuant to R.C.
2505.02(B)], the trial court must comply with Crim.R. 32(C)[.]” Baker at ¶ 6-10. “[T]he
purpose of Crim.R. 32(C) is to ensure that a defendant is on notice concerning when a final
judgment has been entered and the time for filing an appeal has begun to run.” State v. Lester,
130 Ohio St.3d 303, 2011-Ohio-5204, ¶ 10. Accordingly, “[t]o ensure that the defendant is on
notice of when the time to appeal has begun to run, and to avoid disputes regarding the same,
clarity [in the language used by the trial court] is required.” State v. White, 156 Ohio St.3d 536,
2019-Ohio-1215, ¶ 14. Crim.R. 32(C) provides:
A judgment of conviction shall set forth the fact of conviction and the sentence.
Multiple judgments of conviction may be addressed in one judgment entry. If the
defendant is found not guilty or for any other reason is entitled to be discharged,
the court shall render judgment accordingly. The judge shall sign the judgment
and the clerk shall enter it on the journal. A judgment is effective only when
entered on the journal by the clerk.
{¶8} “A judgment of conviction is a final order subject to appeal under R.C. 2505.02
when it sets forth (1) the fact of the conviction, (2) the sentence, (3) the judge’s signature, and
(4) the time stamp indicating the entry upon the journal by the clerk.” Lester at paragraph one of
the syllabus. “[T]he finality of a judgment entry of conviction is not affected by a trial court’s
failure to include a provision that indicates the manner by which the conviction was effected,
because that language is required by Crim.R. 32(C) only as a matter of form, provided the entry
includes all the substantive provisions of Crim.R. 32(C).” Id. at ¶ 12.
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{¶9} “Only one document can constitute a final appealable order.” Baker at ¶ 17.
Further, “all counts of an indictment must be resolved before a judgment entry of conviction may
become a final, appealable order.” State v. Craig, 159 Ohio St.3d 398, 2020-Ohio-455, ¶ 15.
Thus, “a conviction on one count of a multicount indictment is not a final, appealable order when
other counts remain pending after a mistrial.” Id. at ¶ 21.
{¶10} Here, the trial court’s June 5, 2019 judgment entry and June 25, 2019 nunc pro
tunc entry from case CR-2018-08-2643-A fail to meet all of those requirements. In particular,
the trial court’s resolution of count 10 in those entries is concerning. Mr. Carter was found
guilty of that count following the first trial. The June 2019 entries were issued following the
second trial, at which point all of the charges were resolved. The trial court’s entries first list the
guilty findings from the retrial. Then, the trial court states that “[t]he remaining charges were
disposed of at trial for the Defendant held on March 25, 2019. The Court finds the Defendant
guilty of the above offenses.” The entries go on to discuss post-release control and then list the
sentences for the counts that were retried. They do not mention count 10 in this section. The
trial court then proceeds to discuss consecutive versus concurrent sentencing. The trial court
concludes that Mr. Carter’s sentence from the retried counts totals 20 years. Only thereafter,
does the trial court actually reference count 10. The trial court states “[i]t is further ordered that
the total sentences imposed in this case be served consecutively with the sentence defendant is
currently serving on Count 10, imposed on April 10, 2019, for a total sentence of Twenty-seven
one-half (27 ½) years.”
{¶11} Here, the fact of Mr. Carter’s conviction and his sentence as to count 10 are not
clearly stated in the June 2019 entries. The entries do not state that Mr. Carter was found guilty
of count 10 nor do they expressly state his sentence for count 10 (although it could be
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determined using simple math). The June 2019 sentencing entries lack the clarity in language
required by law. See White, 156 Ohio St.3d 536, 2019-Ohio-1215, at ¶ 14. Accordingly, this
Court is required to dismiss Mr. Carter’s appeal in case number 29525.
ASSIGNMENT OF ERROR II
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR
WHEN IT FOUND APPELLANT GUILTY OF HAVING WEAPONS WHILE
UNDER DISABILITY ALONG WITH ITS SPECIFICATION UNDER R.C.
2941.145(D), BECAUSE THE EVIDENCE WAS INSUFFICIENT TO
SUPPORT SUCH FINDINGS.
ASSIGNMENT OF ERROR III
APPELLANT’S CONVICTIONS FOR HAVING WEAPONS WHILE UNDER
DISABILITY, ALONG WITH ITS SPECIFICATION UNDER R.C.
2941.145(D), IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
ASSIGNMENT OF ERROR IV
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN
FAILING TO PROVIDE THE APPELLANT WITH HIS RIGHT TO PROPER
ALLOCUTION PRIOR TO THE IMPOSITION OF HIS PRISON SENTENCE
IN VIOLATION OF R.C. 2929.19(A) AND CRIM.R. 32(A).
{¶12} Mr. Carter argues in his second and third assignments of error that his conviction
for count 10 was based upon insufficient evidence and was against the weight of the evidence.
He asserts in his fourth assignment of error that the trial court failed to allow him to allocute
when sentencing him on count 10. Because the judgment related to these issues is not final and
appealable, we cannot address the merits of these assignments of error.
III.
{¶13} This Court affirms the judgment in case number 29524 and dismisses the
attempted appeal in case number 29525.
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Judgment affirmed in part,
and appeal dismissed in part.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
JENNIFER HENSAL
FOR THE COURT
TEODOSIO, J.
CALLAHAN, J.
CONCUR.
APPEARANCES:
NEIL P. AGARWAL, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN R. DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.