State v. Daniels , 2011 Ohio 1744 ( 2011 )

[Cite as State v. Daniels, 2011-Ohio-1744.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
SCIOTO COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : Case No. 10CA3345
vs. :
JON DANIELS, : DECISION AND JUDGMENT ENTRY
Defendant-Appellant. :
_________________________________________________________________
APPEARANCES:
COUNSEL FOR APPELLANT: Richard M. Nash, Jr., 602 Chillicothe Street, Ste. 700,
Portsmouth, Ohio 45662
COUNSEL FOR APPELLEE: Mark E. Kuhn, Scioto County Prosecuting Attorney, and
Pat Apel, Scioto County Assistant Prosecuting Attorney,
602 Seventh Street, Portsmouth, Ohio 45662
_________________________________________________________________
CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED: 3-31-11
ABELE, J.
{¶ 1} This is an appeal from a Scioto County Common Pleas Court judgment of
conviction and sentence. A jury found Jon Daniels, defendant below and appellant herein, guilty
of (1) assault upon a peace officer in violation of R.C. 2903.13(A)&(C)(3); and (2) obstructing
official business in violation of R.C. 2921.31(A)&(B).
{¶ 2} Appellant assigns the following errors for review:
FIRST ASSIGNMENT OF ERROR:
SCIOTO, 10CA3345 2
“THE TRIAL COURT ERRED IN DENYING APPELLANT’S
MOTION FOR MISTRIAL.”
SECOND ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED WHEN IT ENTERED
JUDGMENT AGAINST THE APPELLANT WHEN THE
EVIDENCE WAS INSUFFICIENT TO SUSTAIN A
CONVICTION AND THE CONVICTION WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE."
THIRD ASSIGNMENT OF ERROR:
“THE TRIAL COURT ABUSED ITS DISCRETION WHEN THE SENTENCE
IT IMPOSED WAS BASED ON FACTORS WHICH WERE UNDISCLOSED,
AND ON ALLEGATIONS WHICH WERE NEITHER CHARGED NOR
TRIED.”
FOURTH ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED IN IMPOSING A SENTENCE CONTRARY TO
LAW.”
{¶ 3} On August 19, 2009, the Scioto County Grand Jury returned an indictment that
charged appellant with the aforementioned offenses. Appellant pled not guilty and the matter
came on for trial over several days in January 2010. After hearing the evidence, the jury
returned guilty verdicts and the trial court sentenced appellant to, inter alia, serve five years
community control and thirty days in the Scioto County Jail. This appeal followed.
{¶ 4} Before we can review the merits of appellant’s four assignments of error, we must
first address a threshold jurisdictional problem. Appellate courts have jurisdiction to review the
final orders of inferior courts within their districts. See Section 3(B)(2), Article IV, Ohio
Constitution; R.C. 2501.02. A final order, for purposes of a criminal case, is one that sets forth
“the plea, the verdict, or findings . . .” See Crim. R. 32(C). If an order is not final and
appealable, then an appellate court does not have jurisdiction to review the matter and the case
SCIOTO, 10CA3345 3
must be dismissed. See General Acc. Ins. Co. v. Ins. Co. of N. America (1989), 44 Ohio St. 3d
17, 20, 540 N.E.2d 266. Moreover, in the event the parties do not raise the jurisdictional issue,
appellate courts must raise it sua sponte. See Chef Italiano Corp. v. Kent State Univ. (1989), 44
Ohio St. 3d 86, 541 N.E.2d 64, syllabus; Whitaker-Merrell v. Geupel Constr. Co. (1972), 29 Ohio
St.2d 184, 186, 280 N.E.2d 922.
{¶ 5} In the case sub judice, we observe that the February 24, 2010 sentencing entry
makes no mention of the jury verdicts. Rather, the entry states that “the defendant has been
convicted of Count 1 . . . and Count 2[.]" Unfortunately, this does not satisfy the Crim.R. 32(C)
requirements. Generally, a trial court must make reference to the manner of conviction, in this
case a jury verdict. See, e.g., State v. Wright, Adams No. 10CA903, 2011-Ohio-779, at ¶7;
State v. Gibson, Highland App. No. 09CA16, 2010-Ohio-5632, at ¶7.
{¶ 6} The Ohio Supreme Court has held that a “judgment of conviction is a final
appealable order under R.C. 2505.02 when it sets forth [inter alia] the guilty plea, the jury
verdict, or the finding of the court upon which the conviction is based.” (Emphasis added.)
State ex rel. Rose v. McGinty, ___ Ohio St.3d ___, ___N.E.2d ___, 2011-Ohio-761, at ¶2; State
v. Baker, 119 Ohio St. 3d 197, 893 N.E.2d 163, 2008-Ohio-3330, at the syllabus. Although the
entry in the case sub judice did provide that appellant was convicted of these offenses, it did not
set out the means by which he was convicted (again, by jury verdict). Therefore, the trial court's
entry does not satisfy the Crim.R. 32(C) requirements.
{¶ 7} For these reasons, the judgment entry appealed herein is neither final nor
appealable, and we have no jurisdiction to review the case. Accordingly, we hereby dismiss this
appeal.
SCIOTO, 10CA3345 4
APPEAL DISMISSED.
JUDGMENT ENTRY
It is ordered that the appeal be dismissed and appellee recover of appellant the costs
herein taxed.
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.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
Kline, J. & McFarland, J.: Concur in Judgment & Opinion
For the Court
BY:
Peter B. Abele, 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.