State v. Crist , 2015 Ohio 5173 ( 2015 )

[Cite as State v. Crist, 2015-Ohio-5173.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
HOCKING COUNTY
STATE OF OHIO, : Case No. 15CA5
Plaintiff-Appellee, :
v. : DECISION AND
JUDGMENT ENTRY
KYLE B. CRIST, :
Defendant-Appellant. : RELEASED: 12/07/2015
APPEARANCES:
Jason A. Sarver, Rockbridge, Ohio, for Defendant-Appellant.
Laina Fetherolf, Hocking County Prosecuting Attorney, Logan, Ohio, for Plaintiff-
Appellee.
Hoover, P.J.
{¶1} This is an appeal from the Hocking County Common Pleas Court in which
defendant-appellant Kyle B. Crist pleaded no contest to, and was found guilty of, illegal
manufacture of drugs, a second-degree felony in violation of R.C. 2925.04(A). Crist
claims that the trial court erred when it overruled his speedy-trial motion to dismiss.
However, because the trial court’s sentencing entry fails to dispose of all counts of the
indictment, and because no other journal entry appears in the record resolving all charges
against Crist, no final appealable order exists. Consequently, we lack jurisdiction to
address the merits of his appeal; and we must dismiss it.
I. Facts and Procedural Posture
{¶2} Crist was arrested on September 18, 2014, during a drug bust in Logan,
Ohio. Charges were initially filed through the Hocking County Municipal Court, where
Hocking App. No. 15CA5 2
Crist waived his right to a preliminary hearing. The case was then bound over to the
Hocking County Common Pleas Court; and Crist was indicted on October 3, 2014, for
the illegal manufacture of drugs, illegal assembly or possession of chemicals for the
manufacture of drugs, tampering with evidence, and aggravated possession of drugs.
Crist remained in the Southeast Ohio Regional Jail on a cash bond from the time of his
arrest on September 18, 2014, through his sentencing on February 9, 2015.
{¶3} On October 17, 2014, Crist filed a discovery demand. The State filed its
response to the discovery demand on October 20, 2014.
{¶4} On December 29, 2014, Crist filed a motion to dismiss based upon the
failure to bring him to trial within the statutory time limits of R.C. 2945.71. In his motion
to dismiss, Crist claimed that 291 days of un-tolled time had elapsed since his arrest,
when each day he had spent in jail was counted as three days in accordance with R.C.
2945.71(E).
{¶5} The trial court heard arguments and testimony on the motion to dismiss on
January 16, 2015, and January 27, 2015. Ultimately, the trial court overruled the motion,
concluding inter alia, that Crist was not entitled to a three for one count because a
probation holder had been placed on him while he was in jail on the pending charges of
the case.
{¶6} Crist subsequently pleaded no contest to illegal manufacture of drugs on
February 9, 2015, and was found guilty of the offense. Crist was sentenced to three years
in prison on the illegal manufacture of drugs conviction. The trial court’s sentencing
judgment entry contained no disposition of Crist’s other charges – illegal assembly or
possession of chemicals for the manufacture of drugs, tampering with evidence, and
Hocking App. No. 15CA5 3
aggravated possession of drugs – and no other journal entry in the record indicates any
resolution of these charges. Crist filed a timely notice of appeal.
II. Assignment of Error
{¶7} Crist assigns the following error for our review:
The trial court erred in denying appellant-defendant’s motion to dismiss
based on a speedy trial violation under R.C. § 2945.71.
III. Law and Analysis
{¶8} In his sole assignment of error, Crist contends that the trial court erred
when it denied his motion to dismiss based on the speedy-trial provisions of R.C.
2945.71.
1. Final, Appealable Order
{¶9} “The Ohio Constitution grants courts of appeals jurisdiction ‘to review and
affirm, modify, or reverse judgments or final orders.’ ” Smith v. Chen, 142 Ohio St. 3d
411, 2015-Ohio-1480, 31 N.E.3d 633, ¶ 8, quoting Ohio Constitution, Article IV, Section
3(B)(2). The General Assembly has enacted R.C. 2505.02 to specify which orders are
final. Id.
{¶10} To constitute a final, appealable order under R.C. 2505.02, a judgment of
conviction and sentence must satisfy the substantive provisions of Crim.R. 32(C) and
include: (1) the fact of conviction; (2) the sentence; (3) the judge’s signature; and (4) the
time stamp indicating the entry upon the journal by the clerk. State v. Lester, 130 Ohio
St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142, paragraph one of the syllabus. The
Supreme Court of Ohio has also held that a final, appealable order in a criminal case
Hocking App. No. 15CA5 4
involving a defendant initially charged with several counts does not require a reiteration
of those counts and specifications for which there were no convictions, but were resolved
in other ways, such as dismissal, nolled counts, or not guilty findings. See State ex rel.
Rose v. McGinty, 128 Ohio St. 3d 371, 2011-Ohio-761, 944 N.E.2d 672, ¶ 3, and cases
cited therein.
{¶11} Nevertheless, “ ‘unless the charges that are not the basis of the conviction
have been properly terminated by a journal entry, they remain technically unresolved.
This “hanging charge” prevents the conviction from being a final order under R.C.
2505.02(B) because it does not determine the action, i.e., resolve the case.’ ” State v.
Brewer, 4th Dist. Meigs No. 12CA9, 2013-Ohio-5118, ¶ 6, quoting State v. Marcum, 4th
Dist. Hocking Nos. 11CA8 and 11CA10, 2012-Ohio-572, ¶ 6; see also State v. Pruitt, 8th
Dist. Cuyahoga No. 96852, 2012-Ohio-1535, ¶ 5, quoting State v. Goodwin, 9th Dist.
Summit No. 23337, 2007-Ohio-2343, ¶ 7 (“ ‘a trial court’s failure to dispose of any of the
charges against a defendant in a single case renders the trial court’s journal entry non-
final in regard to all of the charges against him’ ”); see also State v. Allman, 2d Dist.
Montgomery No. 24693, 2012-Ohio-413, ¶ 6 (“when the trial court fails to dispose of
each charge in the defendant’s case, the trial court’s sentencing entry as to some charges
is merely interlocutory”); see generally Painter and Pollis, Ohio Appellate Practice,
Section 2:10 (2014) (“where a defendant is convicted on more than one charge, there is
no final order until the trial court enters judgment (including sentence) on each and every
offense for which there is a conviction and a journal entry memorializing the disposition
of charges resolved through dismissal or acquittal”).
Hocking App. No. 15CA5 5
{¶12} The sentencing entry appealed from by Crist did not include a disposition
of the second, third, and fourth counts of his indictment, which charged him with illegal
assembly or possession of chemicals for the manufacture of drugs, tampering with
evidence, and aggravated possession of drugs. In addition, while the record indicates that
Crist agreed to plead no contest to the illegal manufacture of drugs charge in exchange
for the State’s dismissal of the remaining three counts, the record does not include any
separate journal entry disposing of these charges and they technically remain pending.
See Brewer at ¶ 8 (concluding that despite the State’s agreement to dismiss count one
upon the defendant’s guilty plea to count two, count one remained pending until a journal
entry indicating dismissal was actually filed). “If a separate journal entry indicated that
the prosecution had actually dismissed [Crist’s] remaining * * * charge[s], the sentencing
entry in his case would be a final, appealable order.” Id. However, as the record currently
stands the sentencing entry does not constitute a final, appealable order. Therefore, we
lack jurisdiction to address the merits of Crist’s appeal and must dismiss it.
IV. Conclusion
{¶13} Because we lack jurisdiction to address the merits of this appeal, we
dismiss it.
APPEAL DISMISSED.
Hocking App. No. 15CA5 6
JUDGMENT ENTRY
It is ordered that the APPEAL IS DISMISSED. Appellant shall pay the costs.
The Court finds that reasonable grounds existed for this appeal.
It is ordered that a special mandate issue out of this Court directing the Hocking
County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL
HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it
is temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of
the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
Harsha, J. and Abele, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________
Marie Hoover
Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing with
the clerk.