State v. Ogle , 2014 Ohio 4868 ( 2014 )

[Cite as State v. Ogle, 2014-Ohio-4868.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
HOCKING COUNTY
State of Ohio, : Case No. 14CA17
Plaintiff-Appellee, : DECISION AND
JUDGMENT ENTRY
v. :
Melanie Ogle, :
RELEASED: 10/30/2014
Defendant-Appellant. :
______________________________________________________________________
HOOVER, A.J.,
{¶1} After reviewing the notice of appeal filed in this matter, we issued an order
directing Appellant Melanie Ogle to file a memorandum addressing whether the entry
appealed from is a final appealable order. At approximately the same time, the state filed
a motion to dismiss the appeal on the merits on the ground that the appeal is barred by
the doctrine of res judicata. Ogle has filed a memorandum arguing that the trial court’s
entry is a final appealable order because it denies her motion to terminate an unlawful
community control. She also responded to the state’s motion to dismiss her appeal on res
judicata grounds. After reviewing the memorandum and the relevant law, we find that the
trial court’s entry is not a final appealable order and we hereby DISMISS the appeal. The
state’s motion to dismiss is DENIED as MOOT.
{¶2} Ogle has been involved in a number of different criminal proceedings and
appeals arising from her conviction by a jury of assault of a peace officer, a violation of
R.C. 2903.13(A) and 2903.13(C)(3) and a felony of the fourth degree, and an Alford plea
upon a reduced charge of criminal damaging, a violation of R.C. 2909.06(A)(1) and a
Hocking App. No. 14CA17 2
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misdemeanor of the second degree. See State v. Ogle, 4 Dist. Hocking App. Nos.
11CA29, 11CA32, 12CA2, 12CA11, 12CA12, 12CA19, 2013-Ohio-3420. As part of her
criminal conviction, Ogle was sentenced to community control.
{¶3} Recently, in May, 2014, Ogle filed a motion with the trial court seeking to
have her community control terminated as unlawfully imposed. The trial court overruled
the motion. Ogle appealed.
{¶4} Appellate courts in Ohio have jurisdiction to review the final orders or
judgments of inferior courts within their district. Section 3(B)(2), Article IV of the Ohio
Constitution; R.C. 2501.02. A final appealable order is one that affects a “substantial right”
and either determines the action or is entered in a special proceeding. R.C. 2505.02(B)(1)
& (2). If a judgment is not final and appealable, then an appellate court has no jurisdiction
to review the matter and must dismiss the appeal. Production Credit Assn. v. Hedges, 87
th
Ohio App.3d 207, 210 at fn. 2 (4 Dist. 1993); Kouns v. Pemberton, 84 Ohio App. 3d 499,
501 (4th Dist. 1992).
{¶5} In State v. Lemaster, 4th Dist. Pickaway App. No. 02CA0, 2003-Ohio-4557,
we held that an order denying the defendant’s motion “to correct and/or modify sentence”
was not a final appealable order. We noted that, “[a] final appealable order includes an
order which amounts to a disposition of the cause and which affects a substantial right in
an action which in effect determines the action and prevents a judgment.” Id. (internal
quotations omitted). We further stated that:
[The defendant] is asking us to review his sentence by reviewing the
trial court’s denial of his motion. However, the trial court’s denial of this
motion did not affect [the defendant’s] substantial rights and determine the
action. If [the defendant’s] substantial rights were in fact ever violated, the
violation occurred at the trial court’s order of conviction and sentencing. He
should have raised all arguments concerning his sentence on his direct
appeal to this Court from the trial court’s imposition of sentence. He failed to
Hocking App. No. 14CA17 3
do so.
Id. at ¶25. As a result we dismissed the appeal for lack of a final appealable order.
{¶6} In State v. Kaiser, 4th Dist. Lawrence App. No. 10CA1, 2010-Ohio-4616, we
followed our holding in Lemaster and reached the same result. Id. at ¶ 22 (defendant did
not have a substantial right to a modification of a previously imposed sentence). We also
noted that several other courts have likewise concluded that a motion to correct, modify, or
reconsider a sentence that is merely attempting to attack the original conviction or
sentence is not a final appealable order. Id. at ¶ 21, citing State v. Senk, 8th Dist.
Cuyahoga App. No. 88524, 2007-Ohio-3414, at ¶ 18 (“it is evident that [the defendant] is
attempting to attack his sentence collaterally by appealing the trial court’s denial of his
motion to correct sentence. We conclude that the judgment of the trial court, which [the
defendant] is appealing, is not a final appealable order.”); State v. Vanelli, 9th Dist. Wayne
App. No. 02CA66, 2003-Ohio-2717, at ¶ 9 (“The November 15, 2001 judgment entry was
final and appealable, yet Appellant failed to timely appeal from that order. Appellant has
filed a notice of appeal from a judgment on a motion to reconsider. Such a judgment is a
nullity and is not a final, appealable order.”); State v. Tully, 5th Dist. Stark App. No.
2001CA313, 2002-Ohio-1290 (finding that appellant’s substantial rights were not affected
rd
because “[n]othing changed by virtue of the [trial court’s] order”); State v. Arnett, 3 Dist.
No. 17-95-25, 1996 WL 106999 (Feb. 22, 1996)(finding that the trial court’s denial of a
motion to modify sentence was not a final appealable order); State v. Shinkle, 27 Ohio
App.3d 54, 55 (12th Dist. 1986)(“For purposes of appeal in a criminal case, a final
judgment or order amounting to a disposition of the cause usually means the imposition of
a sentence.”).
{¶7} We note that courts frequently treat motions to correct, re-sentence, modify,
Hocking App. No. 14CA17 4
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or vacate sentences as petitions for post-conviction relief. See State v. Eubanks, 6 Dist.
Lucas App. No. L-07-1302, 2008-Ohio-1296. However, post-conviction relief petitions are
used to assert claims that there was such a denial or infringement of the person’s rights as
to render the judgment void or voidable under the Ohio or United States Constitution such
that the conviction should be vacated or set aside. R.C. 2953.21(A)(1). The general rule is
that all post-conviction claims are barred by res judicata except those that were
unavailable at trial or on appeal because they are outside the record. State v. Harrington,
172 Ohio App.3d 595, 2007-Ohio-3796, 876 N.E.2d 626 (4th Dist.), at ¶ 8.
{¶8} Ogle’s motion to terminate her community control is an attempt to correct or
modify her sentence and, under Kaiser and LeMaster, supra, the trial court’s order
denying it is not a final appealable order. Trial courts lack any statutory authority to
terminate community control outside the statutory framework provided in R.C. 2929.15(C).
See State v. Castillo, 2nd Dist. Montgomery App. No. 24022, 2011-Ohio-1821 (holding that
trial court has no power modify a sentence to terminate community control except under
R.C. 2929.15(C) where the offender, “for a significant period of time, fulfills the conditions
of a sanction in an exemplary manner”). Ogle seeks to terminate the community control on
the grounds that it was an unlawful sanction, not pursuant to R.C. 2929.15(C). Thus, the
trial court has no authority to terminate the sanction and the order denying her motion is
not a final, appealable order. Additionally, Ogle’s argument that her community control
sanction was unlawful could have been, and was, raised on direct appeal. Therefore, we
decline to treat Ogle’s motion for termination of unlawful community control as a post-
conviction relief petition.
{¶9} The trial court’s order denying Ogle’s motion is not a final appealable order.
Because the trial court’s order denying the motion is not a final appealable order, we do
Hocking App. No. 14CA17 5
not have jurisdiction to consider this appeal from that entry. Therefore, we DISMISS this
appeal for lack of jurisdiction.
{¶10} The clerk shall serve a copy of this order on all counsel of record at their last
known addresses. The clerk shall serve appellant by certified mail, return receipt
requested. If returned unserved, the clerk shall serve appellant by ordinary mail.
APPEAL DISMISSED. MOTION TO DISMISS DENIED AS MOOT. COSTS TO
APPELLANT. IT IS SO ORDERED.
Abele, P.J. & McFarland, J.: Concur.
FOR THE COURT
________________________________
Marie Hoover
Administrative Judge