State v. Jones , 2012 Ohio 3169 ( 2012 )

[Cite as State v. Jones, 2012-Ohio-3169.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
SCIOTO COUNTY
STATE OF OHIO, :
:
Plaintiff-Appellee, : Case No: 11CA3456
:
v. :
: DECISION AND
CARLOS JONES, : JUDGMENT ENTRY
:
Defendant-Appellant. : Filed: July 9, 2012
APPEARANCES:
John A. Bay, Bay Law Office L.L.C., Columbus, Ohio, for Appellant.
Mark E. Kuhn, Scioto County Prosecuting Attorney, and Pat Apel, Scioto County
Assistant Prosecuting Attorney, Portsmouth, Ohio, for Appellee.
Kline, J.:
{¶1} Carlos Jones (hereinafter “Jones”) appeals the judgment of the Scioto
County Court of Common Pleas. The trial court sentenced Jones to nine years in prison
after he pled guilty to two felonies. On appeal, Jones raises several arguments about
the proceedings below. We will not, however, address these arguments. Instead, we
find that no final appealable order exists because the trial court did not resolve all of the
counts against Jones. Accordingly, we dismiss this appeal for lack of jurisdiction.
I.
{¶2} On May 26, 2010, a Scioto County Grand Jury returned an eight-count
indictment against Jones. Eventually, Jones pled guilty to Count 2, trafficking in drugs,
Scioto App. No. 11CA3456 2
and Count 4, having weapons while under disability. The trial court then sentenced
Jones accordingly.
{¶3} Jones appeals several issues from the proceedings below. To that end,
he asserts the following assignments of error: I. “The trial court erred and abused its
discretion by denying Mr. Jones[’s] presentence motion to withdraw his guilty plea (June
30, 2011 Transcript, pp. 4-5).” II. “The trial court erred by imposing court costs without
notifying Mr. Jones that his failure to pay such costs may result in the court ordering him
to perform community service. (June 30, 2011 Sentencing Hearing Transcript, p. 10;
June 30, 2011 Judgment Entry).” And III. “The trial court committed plain error and
denied Mr. Jones due process of law when it imposed court costs without the proper
notification that his failure to pay court costs may result in the court ordering him to
perform community service. Fifth and Fourteenth Amendments to the United States
Constitution; Section 16, Article I of the Ohio Constitution; R.C. 2947.23; Crim.R. 52(B).
(June 30, 2011 Sentencing Hearing Transcript, p. 10; June 30, 2011 Judgment Entry.)”
II.
{¶4} Before we may consider the merits of Jones’s appeal, we must determine
whether a final appealable order exists. “A court of appeals has no jurisdiction over
orders that are not final and appealable.” State v. Baker, 119 Ohio St.3d 197, 2008-
Ohio-3330, 893 N.E.2d 163, ¶ 6, citing Ohio Constitution, Article IV, Section 3(B)(2); see
also R.C. 2505.02. “If a court’s order is not final and appealable, we have no jurisdiction
to review the matter and must dismiss the appeal.” State v. Darget, 4th Dist. No.
09CA3306, 2010-Ohio-3541, ¶ 4. Moreover, “[i]f the parties do not raise the
Scioto App. No. 11CA3456 3
jurisdictional issue, we must raise it sua sponte.” Id. at ¶ 4; Whitaker-Merrell v. Geupel
Constr. Co., 29 Ohio St.2d 184, 186, 280 N.E.2d 922 (1972).
{¶5} “‘In a criminal matter, if a trial court fails to dispose of all the criminal
charges, the order appealed from is not a final, appealable order.’” State v. Purdin, 4th
Dist. No. 11CA909, 2012-Ohio-752, ¶ 7, quoting State v. Rothe, 5th Dist. No. 2008 CA
44, 2009-Ohio-1852, ¶ 9. Here, the grand jury returned an eight-count indictment
against Jones, but the trial court resolved just two of the counts -- Counts 2 and 4. The
trial court’s judgment of conviction does not reference Counts 1, 3, 5, 6, 7, or 8, and the
trial court did not dismiss any of these counts in a separate journal entry. See State v.
Marcum, 4th Dist. Nos. 11CA8 & 11CA10, 2012-Ohio-572, ¶ 6. Furthermore, the record
does not reveal that the remaining counts have been resolved. See State v.
McClanahan, 9th Dist. No. 25284, 2010-Ohio-5825, ¶ 7; Marcum at ¶ 19 (Kline, J.,
dissenting). Therefore, six counts are still pending against Jones, and no final
appealable order exists. See State v. Locke, 4th Dist. No. 11CA3409, 2011-Ohio-5596,
¶ 5-6.
{¶6} In conclusion, we find no final appealable order in the present case. As a
result, we must dismiss Jones’s appeal for lack of jurisdiction.
APPEAL DISMISSED.
Scioto App. No. 11CA3456 4
JUDGMENT ENTRY
It is ordered that the APPEAL BE DISMISSED. Appellant shall pay the costs
herein taxed.
The Court finds that there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the
Scioto County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure. Exceptions.
Abele, P.J., and McFarland, J.: Concur in Judgment & Opinion.
For the Court
BY:_____________________________
Roger L. Kline, 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.