State v. Ogle , 2018 Ohio 354 ( 2018 )

[Cite as State v. Ogle, 2018-Ohio-354.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
HOCKING COUNTY
STATE OF OHIO, :
: Case No. 17CA4
Plaintiff-Appellee, :
:
vs. : DECISION AND JUDGMENT
: ENTRY
MELANIE OGLE :
:
Defendant-Appellant. : Released: 01/23/18
APPEARANCES:
Melanie Ogle, Rockbridge, Ohio, Pro Se Appellant.
Timothy P. Gleeson, Special Assistant Prosecuting Attorney, Logan, Ohio, for
Appellee.
McFarland, J.
{¶1} Melanie Ogle appeals the trial court’s March 17, 2017 judgment entry
which overruled her motion for post-conviction relief pursuant to R.C. 2953.21.
Having reviewed the record, we find that because we have no final appealable
order in this case, we are without jurisdiction to consider the appeal. Accordingly,
we dismiss her appeal.
FACTS
{¶2} State v. Ogle, 4th Dist. Hocking Nos. 11CA29, 11CA32, 12CA2,
12CA11, 12CA12, and 12CA19, 2013-Ohio-3420, contains a lengthy recitation of
Hocking App. No. 17CA4 2
the facts surrounding Appellant’s felony conviction by a jury of her peers for
assault of a peace officer, Hocking County Common Pleas case number
09CR0125. Appellant’s sentencing hearing was held on September 27, 2011. The
judgment entry of sentence was filed on September 28, 2011.
{¶3} Appellant timely filed notices of appeal of her assault conviction and a
subsequent criminal damaging conviction, on various grounds, and the cases were
consolidated for the purposes of her direct appeal. See State v. Ogle, 4th Dist.
Hocking Nos. 11CA29, 11CA32, 12CA2, 12CA11, 12CA12, 12CA19, 2013-Ohio-
3420. This court affirmed both convictions.
{¶4} On September 7, 2016, Appellant filed a petition pursuant to R.C.
2953.21, requesting the court to vacate the original September 28, 2011 sentencing
entry as an unlawful, unauthorized and void judgment entry of conviction and
sentence. On September 16, 2016, Appellant filed a Motion for Final Appealable
Order. On March 17, 2017, the trial court overruled her petition. On April 5,
2017, Appellant filed a Motion for Findings of Fact and Conclusions of Law in
which she again requested the court to file a final appealable order.
{¶5} Appellant filed a notice of appeal of the trial court’s March 17, 2017
entry overruling her petition for post-conviction relief. On May 31, 2017, the trial
court issued a Decision which included general findings of fact and conclusions of
law, and denied the petition on the basis of res judicata.
Hocking App. No. 17CA4 3
ASSIGNMENT OF ERROR
“I. THE TRIAL COURT ERRED AS A MATTER OF LAW IN
OVERRULING DEFENDANT-APPELLANT’S SEPTEMBER 7,
2016 PETITION PURSUANT TO ORC 2953.21, BY FAILING TO
ADHERE TO JOHNSON V. ZERBST, 304 U.S.458, 567-68, 58
S.CT. 1019, 1024, 82 L.ED 1461 (1938); CARNLEY V. COCHRAN,
369 U.S. 513, 516, 82 S. CTO. 884, 8 L.ED.2D 70 (1962); FARETTA
V. CALIFORNIA, 422 U.S. 806, 95 S.CT. 2525, 45 L.ED.2D 562
(1975); STATE V. TYMCIO, 42 OHIO ST.2D 39 (1975); STATE V.
GIBSON, 45 OHIO ST.2D 366, 376, 345 N.E.2D 399 (1976); STATE
V. GOLSTON, 71 OHIO ST.3D 224, 643 N.E.2D 109 (1994);
STATE V. MARTIN, 103 OHIO ST.3D 385 (2004); STATE V.
SIMPKINS, 117 OHIO ST.3D 420, 2008-OHIO-1187, 884 N.E.2D
568; STATE V. FISCHER, 128 OHIO ST.3D 92, 2010-OHIO-6238,
942 N.E.2D 332; STATE V. BILLITER, 134 OHIO ST.3D 103,
2012-OHIO-5144; JACKSON V. WICKLINE, 153 OHIO APP.3D
743, 2003-OHIO-4354; STATE V. CUPP, 2016-OHIO-8462, 4TH
APPELLATE DISTRICT; STATE V. KLEIN, 2016-OHIO-5315,
4TH APPELLATE DISTRICT; STATE V. HARTLEY, 2016-OHIO-
2854, 10TH APPELLATE DISTRICT, AND THE OHIO RULES OF
CRIMINAL PROCEDURE RULE 44(A). ET AL., AND
VACATING THE UNLAWFUL, UNAUTHORIZED AND
THEREFORE, VOID, SEPTEMBER 28, 2011 JUDGMENT ENTRY
OF CONVICTION AND SENTENCE, AND SUBSEQUENT
ENTRIES AND ORDERS PURSUANT TO THE TRIAL COURT’S
UNLAWFUL, UNAUTHORIZED AND VOID SEPTEMBER 28,
2011 JUDGMENT ENTRY OF CONVICTION AND SENTENCE,
FOR VIOLATION OF DEFENDANT-APPELLANT’S
CONSTITUTIONAL RIGHTS TO COUNSEL UNDER THE SIXTH
AND FOURTEENTH AMENDMENTS DURING THE TRIAL
COURT’S SEPTEMBER 27, 2011 SENTENCING HEARING,
WHICH WERE HELD AND ORDERED AGAINST DEFENDANT-
APPELLANT CONTRARY TO WELL-ESTABLISHED LAW.”
LEGAL ANALYSIS
{¶6} This Court has previously emphasized that “[a]n appellate court's
Hocking App. No. 17CA4 4
jurisdiction over trial court judgments extends only to final orders.” Cummin v
Cummin, 4th Dist. Hocking Nos. 16CA19, 16CA20, 2017-Ohio-7877, ¶ 17,
quoting Elliott v. Rhodes, 4th Dist. Pickaway No. 10CA26, 2011-Ohio-339, ¶ 17;
citing Ohio Const. Art. IV, Section 3(B)(2). Section 2505.02(B)(2) defines “a final
order that may be reviewed, affirmed, modified, or reversed” as one that “affects a
substantial right made in a special proceeding * * *.” Cummin, supra, quoting
Koroshazi v. Koroshazi, 110 Ohio App. 3d 637, 640, 674 N.E.2d 1266 (9th
Dist.1996); citing Bell v. Mt. Sinai Med. Ctr., 67 Ohio St. 3d 60, 63, 616 N.E.2d
181 (1993). In order to constitute a final order, the order must dispose of the
whole case or some separate and distinct branch. See, e.g., Noble v. Colwell, 44
Ohio St. 3d 92, 94, 540 N.E.2d 1381 (1989). Generally, when an order does not
contemplate further action and no other related issues remain pending, the order
normally constitutes a final order. Cummin, supra, at ¶ 17; Elliott v. Rhodes at
¶ 17; citing In re H.T.–W., 6th Dist. Lucas No. L-10-1027, 2010-Ohio-1714, ¶ 7;
see also Christian v. Johnson, 9th Dist. Summit No. 24327, 2009-Ohio-3863.
{¶7} “Ohio law requires a trial court to make findings of fact and
conclusions of law when it dismisses a petition or denies post-conviction relief on
the merits.” State v. Kelly, 4th Dist. Scioto No. 13CA3562, 2014-Ohio-1020, ¶ 6,
quoting State v. Brooks, 4th Dist. Scioto No. 09CA3329, 2010-Ohio-3262, ¶ 4;
R.C. 2953.21(C) & (G). In State v. Mapson, 1 Ohio St. 3d 217, 218, 438 N.E.2d
Hocking App. No. 17CA4 5
910 (1982), the Ohio Supreme Court held “R.C. 2953.21 mandates that a judgment
denying post-conviction relief include findings of fact and conclusions of law, and
that a judgment entry filed without such findings is incomplete.” Brooks, supra.
The findings need only be sufficiently comprehensive and pertinent to the issue to
form a basis upon which the evidence supports the conclusion. Brooks, supra,
citing State v. Calhoun 86 Ohio St. 3d 279, 1999-Ohio-102, 714 N.E.2d 905. If the
judgment is incomplete without the findings, then the judgment will not constitute
a final appealable order. Brooks, supra. See e.g. State v. McDougald, 4th Dist.
Scioto No. 09CA3278, 2009-Ohio-4417, at ¶ 12, fn. 3; State v. Speed, 8th Dist.
Cuyahoga No. 85095, 2005-Ohio-1979, at ¶ 2; State v. Hickman, 9th Dist. Summit
No. 22279, 2005-Ohio-472, at ¶ 10; State ex rel. Baker v. Common Pleas Court
(Feb. 17, 2000), Mahoning App. No. 830. In the absence of a final order, an
appellate court has no jurisdiction to review the matter and the appeal must be
dismissed. See, generally, State v. McGee, 8th Dist. Cuyahoga No. 92026, 2010-
Ohio-2082, at ¶ 6; State v. Phillis, 4th Dist. Washington No. 06CA75, 2007-Ohio-
6893, at ¶ 5.
{¶8} Appellant filed a notice of appeal of the Judgment Entry dated March
17, 2017. The trial court's March 17, 2017 judgment entry does not contain
findings of fact and conclusions of law. The entry states only: “This matter comes
to be heard on the Defendant’s motion for post conviction relief filed on September
Hocking App. No. 17CA4 6
7, 2016. The Motion is overruled.” Based on the case law set forth above, the
March 17, 2017 entry is incomplete.
{¶9} As such, the March 17, 2017 entry does not constitute a final
appealable order. Because we have no final appealable order in this case, we are
without jurisdiction to consider Appellant’s appeal and we must dismiss this
appeal.
APPEAL DISMISSED.
Hocking App. No. 17CA4 7
JUDGMENT ENTRY
It is ordered that the APPEAL BE DISMISSED and costs be assessed to
Appellant.
The Court finds there were reasonable grounds 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.: Concurs in Judgment and Opinion.
Abele, J.: Concurs in Judgment Only.
For the Court,
BY: ____________________________
Matthew W. McFarland, 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.