State v. Smith , 2011 Ohio 1659 ( 2011 )

[Cite as State v. Smith, 2011-Ohio-1659.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
HIGHLAND COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : Case No. 10CA13
vs. :
NICHOLAS A. SMITH, : DECISION AND JUDGMENT ENTRY
Defendant-Appellant. :
________________________________________________________________
APPEARANCES:
COUNSEL FOR APPELLANT: Jacob D. Wagoner, 212 North High Street, Hillsboro, Ohio
45133
COUNSEL FOR APPELLEE: James B. Grandey, Highland County Prosecuting Attorney,
112 Governor Foraker Place, Hillsboro, Ohio 45133
_________________________________________________________________
CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED: 3-23-11
ABELE, J.
{¶ 1} This is an appeal from a Highland County Common Pleas Court judgment of
conviction and sentence. The trial court found Nicholas A. Smith, defendant below and appellee
herein, guilty of unlawful sexual contact with a minor, in violation of R.C. 2907.04, and
sentenced him to serve three years in prison. Appellant's counsel has advised this court that he
has reviewed the record and can discern no meritorious claim to appeal. Pursuant to Anders v.
HIGHLAND, 10CA13 2
California (1967), 386 U.S. 738, 87 S. Ct. 1396, 18 L.Ed.2d 493,1 counsel thus requests to
withdraw from the case. Appellant’s counsel has suggested, however, that an appeal may
arguably exist on the basis that appellant received ineffective assistance of counsel. However,
our review of the record reveals that we lack a final, appealable order and we therefore do not
reach an Anders review. Instead, we must dismiss this appeal.
I. FACTS
{¶ 2} On May 4, 2010, the Highland County Grand Jury returned an indictment that
charged appellant with sexual battery, in violation of R.C. 2907.03(A)(5). On July 23, 2010, the
appellee filed a bill of information, in the same case, that charged appellant with unlawful sexual
contact with a minor in violation of R.C. 2907.04(A). On July 23, 2010, appellant pled guilty to
unlawful sexual contact with a minor. On September 8, 2010, the trial court sentenced appellant
to serve three years in prison. This appeal followed.
II. FINAL, APPEALABLE ORDER IN CRIMINAL CASES
{¶ 3} A court of appeals has no jurisdiction over orders that are not final and
appealable. Section 3(B)(2), Article IV, Ohio Constitution (“Courts of appeals shall have such
jurisdiction as may be provided by law to review and affirm, modify, or reverse judgments or
1
In Anders, the United States Supreme Court held that if counsel determines, after a thorough and conscientious
examination of the record, that the case is wholly frivolous, counsel should so advise the court and request permission to
withdraw. Id. At 744. Furthermore, counsel must accompany the request with a brief that identifies anything in the record
that could arguably support the appeal. Id. Counsel must also provide appellant with a copy of the brief and allow him
sufficient time to raise any matters that he so chooses. Id. Once these requirements have been satisfied, the appellate
court must fully examine the trial court proceedings to determine if meritorious issues exist. Id. If the appellate court
determines that the appeal is frivolous, it may grant counsel’s request to withdraw and dismiss the appeal without violating
constitutional requirements. Id. If, however, the court finds the existence of meritorious issues, it must afford the
appellant assistance of counsel before deciding the merits of the case. Id.
HIGHLAND, 10CA13 3
final orders of the courts of record inferior to the court of appeals within the district * * * ”); see,
also, R.C. 2953.02. We are required to sua sponte raise jurisdictional issues when they become
apparent. See, e.g., In re B.J.G., Adams App. No. 10CA894, 2010-Ohio-5195, at ¶6.
{¶ 4} In order for a judgment of conviction to qualify as a final appealable order, a trial
court must comply with Crim.R. 32(C), which states: “A judgment of conviction shall set forth
the plea, the verdict or findings, and the sentence. If the defendant is found not guilty or for any
other reason is entitled to be discharged, the court shall render judgment accordingly. The judge
shall sign the judgment and the clerk shall enter it on the journal. A judgment is effective only
when entered on the journal by the clerk.” The Ohio Supreme Court has interpreted this rule to
mean that 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.” State v. Baker, 119 Ohio St. 3d 197, 2008-Ohio-3330, 893 N.E.2d 163, syllabus; see,
also, State ex rel. DeWine v. Burge, — Ohio St.3d —, — N.E.2d —, 2011-Ohio-235, at ¶8.
{¶ 5} Ohio courts have further interpreted these requirements as imposing “‘a
mandatory duty [on the trial court] to deal with each and every charge prosecuted against a
defendant,’” and have stated that “‘[t]he failure of a trial court to comply renders the judgment of
the trial court substantively deficient under Crim.R. 32[(C)].’” State v. Geisler, Athens App.
No. 07CA35, 2008-Ohio-4836, at ¶13, quoting State v. Brooks (May 16, 1991), Cuyahoga App.
No. 58548, citing State v. Brown (1989), 59 Ohio App. 3d 1, 2, 569 N.E.2d 1068; see, also, In re
B.J.G., supra; State v. Fox, Highland App. No. 04CA15, 2005-Ohio-792. Therefore, if a trial
court fails to issue an entry that disposes of each prosecuted charge, the court’s order constitutes
HIGHLAND, 10CA13 4
an interlocutory order that is not subject to appellate review. See Geisler; State v. Lupardus,
Washington App. No. 07CA46, 2008-Ohio-2660; State v. Johnson, Scioto App. No. 06CA3066,
2007-Ohio-1003; State v. Fox, Highland App. No. 04CA15, 2005-Ohio-792; see, also, Cleveland
v. Duckworth (Jan. 24, 2002), Cuyahoga App. No. 79658 (stating that trial court must dispose of
all charges in order for judgment to be final, appealable order).
{¶ 6} In the case at bar, the appellee instituted this case by filing an indictment that
charged appellant with sexual battery, in violation of R.C. 2907.03(A)(5). The appellee later
filed a bill of information that charged appellant with unlawful sexual contact with a minor, in
violation of R.C. 2907.04(A). The bill of information appears in the same case as the sexual
battery indictment and appellant subsequently entered a guilty plea to the bill of information.
However, it does not appear that the court disposed of the sexual battery charge set forth in the
indictment. Thus, that indictment remains pending and deprives us of jurisdiction to hear this
appeal. See, e.g., State v. Kuhn Montgomery App. No. 20912, 2005-Ohio-6836, (the defendant
pled to bill of information after the prosecution nolled the indictment). Accordingly, based
upon the foregoing reasons, we hereby dismiss this appeal.
APPEAL DISMISSED.
JUDGMENT ENTRY
It is ordered that the appeal be dismissed and that appellee recover of appellant 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 Highland County
HIGHLAND, 10CA13 5
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.
Harsha, P.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.