State v. Frye , 2013 Ohio 5872 ( 2013 )

[Cite as State v. Frye, 2013-Ohio-5872.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
SCIOTO COUNTY
STATE OF OHIO, :
:
Plaintiff-Appellee, : Case No. 13CA3572
:
vs. :
: DECISION AND JUDGMENT
TRACY A. FRYE, : ENTRY
:
Defendant-Appellant. : Released: 12/24/13
APPEARANCES:
Bryan Scott Hicks, Lebanon, Ohio, for Appellant.
Mark E. Kuhn, Scioto County Prosecutor, and Pat Apel, Assistant Scioto
County Prosecutor, Portsmouth, Ohio, for Appellee.
McFarland, P.J.
{¶1} Tracy A. Frye appeals from his conviction and sentence
imposed by the Scioto County Court of Common Pleas after he pled guilty
to four felony drug trafficking offenses. On appeal, Appellant contends that
the trial court improperly denied his presentence motion to withdraw his
guilty pleas. Because the order appealed from is not a final, appealable
order, we lack jurisdiction to consider the merits of Appellant’s assignment
of error and therefore must dismiss the appeal. Accordingly, this matter is
dismissed.
Scioto App. No. 13CA3572 2
FACTS
{¶2} On March 1, 2011, Appellant was indicted on twelve counts of
drug possession and drug trafficking. More specifically, Appellant was
indicted on six felony drug trafficking counts in violation of R.C. 2925.03,
five felony drug possession counts in violation of R.C. 2925.11, and one
misdemeanor drug possession count in violation of R.C. 2925.11. The
indictment also included a forfeiture specification. Although Appellant
initially pled not guilty to the charges contained in the indictment, on
September 20, 2011, pursuant to a negotiated plea agreement with the State,
Appellant entered guilty pleas to Counts 1, 3, 5, and 9 of the indictment.
The matter was scheduled for a later sentencing hearing.
{¶3} Prior to Appellant’s scheduled sentencing hearing, Appellant
moved the trial court for withdrawal of his previously entered pleas. The
trial court held a hearing on Appellant’s motion to withdraw his pleas on
January 18, 2012, and by judgment entry dated May 7, 2012, the trial court
denied Appellant’s motion. The matter proceeded to sentencing on May 31
and June 6, 2012, and the trial court issued its judgment entry on July 5,
2012. The trial court’s July 5, 2012, judgment entry imposing sentence
incorrectly stated that Appellant had pled guilty to and was thus being
sentenced on counts 1, 5, 7 and 9, rather than counts 1, 3, 5, and 9, as
Scioto App. No. 13CA3572 3
indicated in both the plea and sentencing hearing transcripts, as well as the
September 23, 2011, judgment entry issued after the change of plea hearing.
{¶4} Appellant filed a direct appeal from his conviction and sentence
but this Court dismissed the appeal for lack of a final, appealable order upon
finding that the record indicated that Appellant had pled guilty to counts 1,
3, 5, and 9, but that the remaining eight counts, which were counts 2, 4, 6, 7,
8, 10, 11 and 12, had not been dismissed. State v. Frye, 4th Dist. Scioto No.
12CA3499, 2013-Ohio-3307. Subsequent to our dismissal, the trial court
filed an entry of dismissal on August 14, 2013, purporting to dismiss the
remaining counts. Specifically, the entry of dismissal states that Appellant
was sentenced on counts 1, 5, 7, and 9, and goes on to dismiss counts 2, 3, 4,
6, 8, 10, 11 and 12 of the indictment. Appellant now appeals to this Court
once again, setting forth a single assignment of error for our review.
ASSIGNMENT OF ERROR
“I. MR. FRYE WAS IMPROPERLY DENIED WITHDRAWAL OF HIS
PLEA.”
LEGAL ANALYSIS
{¶5} In his sole assignment of error, Appellant contends that the trial
court improperly denied his motion to withdraw his pleas. Unfortunately,
before we reach Appellant's assignment of error, we must again address a
threshold jurisdictional issue. Ohio appellate courts have appellate
Scioto App. No. 13CA3572 4
jurisdiction over “final orders.” Section 3(B)(2), Article IV of the Ohio
Constitution. If a judgment is not a final order, an appellate court has no
jurisdiction to consider it and the appeal must be dismissed. State v. Carver,
4th Dist. Scioto No. 10CA3377, 2012-Ohio-3479, ¶ 5; Davison v. Rini, 115
Ohio App. 3d 688, 692, 686 N.E.2d 278 (4th Dist. 1996); Prod. Credit Assn.
v. Hedges, 87 Ohio App.3d 207, 210, 621 N.E.2d 1360, FN.2 (4th Dist.
1993); Kouns v. Pemberton, 84 Ohio App.3d 499, 501, 617 N.E.2d 701 (4th
Dist. 1992). Furthermore, even if the parties do not raise jurisdictional issues
on appeal, an appellate court is required to raise them sua sponte. See In re
Murray, 52 Ohio St.3d 155, 159-160, 556 N.E.2d 1169, FN.2 (1990);
Whitaker-Merrell v. Geupel Co., 29 Ohio St.2d 184, 186, 280 N.E.2d 922(1972).
{¶6} Much like the last time we considered this case, a jurisdictional
problem exists. As indicated above, Appellant pled guilty to four counts of
the indictment, specifically, counts 1, 3, 5, and 9. The trial court’s judgment
entry states in error that Appellant pled guilty to counts 1, 5, 7 and 9. We
dismissed this matter for lack of a final, appealable order, stating that counts
2, 4, 6, 7, 8, 10, 11, and 12 remained pending. Instead of dismissing the
remaining counts detailed in our prior decision and correcting the judgment
entry to properly reflect the counts Appellant had pled to, the trial court left
Scioto App. No. 13CA3572 5
the judgment as is and filed an additional entry of dismissal, dismissing
counts, 2, 3, 4, 6, 8, 10, 11 and 12.
{¶7} This is problematic in several respects. First, the judgment entry
dated July 5, 2012, is incorrect. Second, the entry of dismissal filed on
August 12, 2013, dismisses count 3, which Appellant clearly pled guilty to.
Finally, the entry of dismissal still fails to dismiss count 7, a count which
Appellant did not plead guilty to and should have been dismissed. When an
indictment count remains unresolved and is still pending, there is no final
order. In re B.J.G., 4th Dist. Adams No. 10CA894, 2010-Ohio-5195, ¶ 7.
Because our review of the record indicates that count 7 remains unresolved
and is still pending, there is no final order and we must, therefore, dismiss
the appeal for lack of jurisdiction. We point out these additional problems
with the record in order that they may be corrected post-appeal.
APPEAL DISMISSED.
Scioto App. No. 13CA3572 6
JUDGMENT ENTRY
It is ordered that the APPEAL BE DISMISSED. Costs herein are 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 Scioto
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. & Hoover, J.: Concur in Judgment and Opinion.
For the Court,
BY: ______________________________
Matthew W. McFarland
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.