Berea v. Collins ( 2013 )

[Cite as Berea v. Collins, 2013-Ohio-4191.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99406
CITY OF BEREA
PLAINTIFF-APPELLEE
vs.
JOSHUA A. COLLINS
DEFENDANT-APPELLANT
JUDGMENT:
DISMISSED
Criminal Appeal from the
Berea Municipal Court
Case No. 12 TRC 00242
BEFORE: Stewart, A.J., Celebrezze, J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: September 26, 2013
ATTORNEY FOR APPELLANT
Joseph F. Salzgeber
Foth & Foth Co., L.P.A.
11221 Pearl Road
Strongsville, OH 44136
ATTORNEY FOR APPELLEE
James N. Walters, III
City of Berea Prosecutor
11 Berea Commons
Berea, OH 44017
MELODY J. STEWART, A.J.:
{¶1} The city of Berea charged defendant-appellant Joshua A. Collins with
operating a vehicle while intoxicated, having a prohibited blood alcohol level, and
speeding. Collins filed a motion to suppress all statements made by him in addition to
the results of field sobriety and blood alcohol tests on grounds that the police illegally
entered his home and failed to conduct the sobriety tests in compliance with established
standards. After the municipal court denied the motion to suppress, Collins pleaded no
contest to a single count of operating a vehicle while intoxicated in exchange for the
dismissal of the remaining counts. He consented to being sentenced, and was sentenced,
by a court magistrate. His sole assignment of error contests the court’s refusal to grant
his motion to suppress evidence.
{¶2} We are unable to address the merits of this appeal because the trial judge
failed to adopt the sentence imposed by the magistrate and enter it as a judgment of the
court. Hence, there is no valid sentence and the appeal is not final.
{¶3} Crim.R. 19(C)(1)(c)(ii) permits a magistrate in a misdemeanor case to
“accept and enter guilty and no contest pleas, determine guilt or innocence, receive
statements in explanation and in mitigation of sentence, and recommend a penalty to be
imposed.” (Emphasis added.) That the magistrate only issues a “recommendation” of a
penalty to be imposed is reinforced not only by Crim.R. 19(D)(4)(a) which states that “[a]
magistrate’s decision is not effective unless adopted by the court[,]” but by Crim.R. 32(C),
which states that a criminal judgment must set forth “the sentence” and “that the judge shall
sign the judgment.”
{¶4} Collins agreed in open court to have a magistrate sentence him, but that
agreement could not confer on the magistrate authority that the Rules of Criminal
Procedure give solely to a judge. The magistrate could recommend a sentence, but that
sentence was not final until adopted by the court and set forth in a judgment. State v.
Pennington, 187 Ohio App.3d 526, 2010-Ohio-2139, 932 N.E.2d 941 (2d Dist.);
Youngstown v. Waselich, 7th Dist. Mahoning No. 04 MA 164, 2005-Ohio-6449. The
judge did not adopt the magistrate’s recommendation on sentencing, so there is no final
judgment of conviction that conforms to Crim.R. 32.
{¶5} With no sentence having been adopted and reduced to judgment with the
judge’s signature, there was no final order of conviction. See State v. Baker, 119 Ohio
St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163, syllabus (“A judgment of conviction is a
final appealable order under R.C. 2505.02 when it sets forth (1) the guilty plea, the jury
verdict, or the finding of the court upon which the conviction is based; (2) the sentence;
(3) the signature of the judge; and (4) entry on the journal by the clerk of court.”). We
therefore lack jurisdiction to hear this appeal.
{¶6} Accordingly, the appeal is dismissed.
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.
MELODY J. STEWART, ADMINISTRATIVE JUDGE
FRANK D. CELEBREZZE, JR., J., and
SEAN C. GALLAGHER, J., CONCUR