State v. Chesser , 2013 Ohio 5567 ( 2013 )

[Cite as State v. Chesser, 2013-Ohio-5567.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ATHENS COUNTY
STATE OF OHIO, :
:
Plaintiff-Appellee, : Case No. 12CA48
:
vs. :
: DECISION AND JUDGMENT
JOSEPH CHESSER, : ENTRY
:
Defendant-Appellant. : Released: 12/11/13
_____________________________________________________________
APPEARANCES:
David J. Winkelmann, Millfield, Ohio, for Appellant.
Patrick J. Lang, Athens City Law Director, Athens, Ohio, for Appellee.
_____________________________________________________________
McFarland, P.J.
{¶1} This is an appeal from an Athens Municipal Court judgment
entry imposing Appellant Joseph Chesser’s original jail term of twenty-
seven days after Appellant was found guilty of violating his previously
imposed probation. Appellant had previously pled no contest to a first
degree misdemeanor violation of R.C. 4301.69(E)(1), underage possession
of alcohol. Appellant’s counsel has advised this Court that, after reviewing
the record, he cannot find a meritorious claim for appeal. As a result,
Appellant’s counsel has moved to withdraw under Anders v. California, 386
U.S. 738, 87 S.Ct. 1396 (1967).
Athens App. No. 12CA48 2
{¶2} However, because our independent review of the record
indicates that the trial court's February 20 and December 19, 2012, entries
were not final, appealable orders, we are without jurisdiction to consider this
matter and therefore must dismiss the appeal. In dismissing this appeal,
however, in accordance with the procedure set forth in Anders, the motion of
counsel for Appellant requesting to withdraw as counsel is granted.
FACTS
{¶3} Appellant was charged with a first degree misdemeanor
violation of R.C. 4301.69(E)(1), underage possession of alcohol on August
16, 2011. Appellant initially pled not guilty but later changed his plea to no
contest on February 20, 2012. This case was identified below as
11CRB02256. In what purports to be a sentencing entry dated February 20,
2012, Appellant was sentenced to thirty days in jail, credit for time served,
with twenty-seven days suspended, and was placed on probation.1 This
form, however, does not identify the name of the offense to which Appellant
was pleading, nor does it include the code section or degree of offense. It
simply references case number 11CRB02256.
{¶4} A notice of probation violation was filed on June 21, 2012. The
record indicates that a probation revocation hearing was held on December
1
This Court is unable to decipher the exact sentence, which was handwritten by the trial court judge.
Athens App. No. 12CA48 3
19, 2012, however that transcript was not transmitted to this Court, despite
Appellant’s request to the clerk to do so. The record further contains an
untitled form dated December 19, 2012, which purports to be a sentencing
entry, signed by the trial court judge indicating that the previously
suspended twenty-seven-day jail term was being imposed. Again, there is
no stated criminal offense, degree of offense or code section listed on this
form, but rather the form simply references case number 11CRB02256.
Appellant did not file a direct appeal from his original conviction for
underage drinking but now appeals from the decision revoking his probation
and imposing his suspended jail term. It is from this purported sentencing
entry that Appellant now brings his appeal.
LEGAL ANALYSIS
{¶5} In the current action, Appellant’s counsel advises that the appeal
is wholly frivolous and has asked permission to withdraw. Pursuant to
Anders, counsel has filed a brief raising three potential assignments of error
for this Court’s review. Counsel’s potential assignments of error are as
follows:
“I. INEFFECTIVE ASSISTANCE OF COUNSEL IN FAILING TO
CHALLENGE THE ALLEGED VIOLATION AT ISSUE ON
STATE AND FEDERAL CONSTITUTIONAL GROUNDS.
II. PLAIN ERROR BY THE TRIAL COURT ON THE SAME
GROUNDS.
Athens App. No. 12CA48 4
III. THAT THE PLEA WAS NOT MADE KNOWINGLY,
VOLUNTARILY OR INTELLIGENTLY.”
However, after independently reviewing the record, based upon the
following reasons, we conclude that neither of the trial court’s purported
sentencing entries were final appealable orders. As such, we do not reach
the merits of Appellant’s potential assignments of error.
{¶6} The record before us contains two different documents,
purportedly sentencing entries, one related to a conviction for an original
charge and the other issued after a probation revocation hearing. Although
both documents contain the case caption, the sentence, the case number and
are signed by the judge and file stamped in the Athens Municipal Court,
only the February 20, 2012, form contains the plea of Appellant and the
finding of guilty by the trial court, and neither form identifies the name or
degree of the offense or the code section at issue.
{¶7} “A judgment of conviction is a final order subject to appeal
under R.C. 2505.02 when it sets forth (1) the fact of the 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. While both
entries at issue contain the sentence, the judge's signature, and the time
Athens App. No. 12CA48 5
stamp indicating the entry upon the journal by the clerk, the fact of
conviction is in question on each. Although the entries reference the case
number, the entries themselves do not indicate the names of the crimes, nor
do they contain a code section or degree of offense. In order for us to
determine what Appellant originally pled guilty to, and for that matter
whether Appellant even pled to the probation violation, we must look back
to the complaint to determine the charged offense, and in the case of the
probation violation, the transcript of the revocation hearing, which as
mentioned above, was not transmitted on appeal.
{¶8} We cannot combine two documents to create a final, appealable
order. This is so because “[t]he Supreme Court of Ohio has held in a
noncapital criminal case that ‘[o]nly one document can constitute a final
appealable order.’ ” City of Logan v. Conkey, 4th Dist. Hocking No. 11
CA34, 2012-Ohio-4687, ¶ 6; quoting State v. Thompson, 4th Dist. Ross No.
10CA3177, 2011-Ohio-1564, ¶ 11; quoting State v. Baker, 119 Ohio St.3d
197, 2008-Ohio-3330, 893 N.E.2d 163, ¶ 17. As such, not only does the trial
court’s December 19, 2012, entry not satisfy the requirements for a final,
appealable order, neither did the original sentencing entry dated February
20, 2012.
Athens App. No. 12CA48 6
{¶9} Consequently, because the entries related to Appellant's
underlying convictions are not final, appealable orders, we conclude that we
lack jurisdiction to consider the present appeal. Accordingly, based upon the
foregoing, we must dismiss the appeal. As indicated, however, we also
grant counsel’s motion to withdraw pursuant to Anders v. California.
APPEAL DISMISSED.
Athens App. No. 12CA48 7
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 Athens
County Municipal 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.