State v. Dearmond , 2022 Ohio 2324 ( 2022 )

[Cite as State v. Dearmond, 2022-Ohio-2324.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
LOGAN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 8-21-43
v.
DEVON L. DEARMOND, OPINION
DEFENDANT-APPELLANT.
Appeal from Logan County Common Pleas Court
Trial Court No. CR 20 01 0002
Appeal Dismissed
Date of Decision: July 5, 2022
APPEARANCES:
Christopher R. Bucio for Appellant
Sarah J. Warren for Appellee
Case No. 8-21-43
SHAW, J.
{¶1} Defendant-appellant, Devon L Dearmond (“Dearmond”), brings this
appeal from the November 2, 2021 judgment of the Logan County Common Pleas
Court sentencing him to an indefinite prison term of six to nine years after
Dearmond was convicted in a jury trial of two counts of felonious assault. On
appeal, Dearmond argues that he received ineffective assistance of counsel, and that
the trial court abused its discretion by denying his request for a jury instruction on
self-defense. However, because the trial court specifically reserved the issue of
restitution and explicitly declared that its own “sentencing entry” was not a final
appealable order, we must dismiss the instant appeal.
Background
{¶2} On January 12, 2021, Dearmond was indicted for attempted murder,
aggravated robbery, two counts of felonious assault, and tampering with evidence.
Dearmond pled not guilty to the charges and proceeded to a jury trial wherein he
was acquitted of the attempted murder and aggravated robbery charges; however,
he was convicted of both counts of felonious assault. Notably, the tampering with
evidence charge was dismissed by the State.
{¶3} On November 2, 2021, Dearmond’s case proceeded to sentencing.
There was some discussion at the sentencing hearing regarding restitution to the two
victims Dearmond had stabbed. When the issue of restitution was raised, the trial
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court stated that it would hold a separate hearing on the matter. Dearmond was then
ordered to serve concurrent, indefinite prison terms of six to nine years on each
count of felonious assault.
{¶4} The trial court filed an entry on November 2, 2021 pronouncing
Dearmond’s prison sentence; however, the entry retained jurisdiction over the issue
of restitution.
{¶5} On November 4, 2021, the trial court filed a “Judgment Entry setting
status conference on restitution and tolling of time for defendant to appeal.” (Doc.
No. 272). In that entry, the trial court stated:
At the sentencing hearing, the Court expressly reserved its
decision on the victims’ request for restitution until the Ohio
Supreme Court decides the recoverability of lost wages and
mileage that is currently pending before the Court in State v.
Yerkey[, 2020-Ohio-1392]. Thus, the Court’s sentencing entry is
NOT a final appealable order. The Court has put on a nunc pro
tunc sentencing entry to make this clear.1 The pending restitution
hearing tolls Defendant’s time to appeal until after the Court
holds the restitution hearing and puts on its restitution entry.
(Id.) At the conclusion of its entry, the trial court set the matter for a status
conference on January 18, 2022. However, prior to that status conference,
1
The trial court did file a nunc pro tunc entry that same day. We note that oral arguments were held in Yerkey
on September 22, 2021, but no decision has been released. Given the rather typical delay of some eight
months since oral arguments, we question the practice of holding cases such as this one contingent upon
future resolution by the Supreme Court of Ohio especially where, as here, Dearmond remains incarcerated
pending his appeal.
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Dearmond filed a notice of appeal, asserting the following “assignments of error”
for our review.
Assignment of Error No. 1
Ineffective Assistance of Counsel
Assignment of Error No. 2
Abuse of Discretion [The facts and circumstances of this case
warranted a jury instruction on self-defense.]
{¶6} Before reaching Dearmond’s assignments of error, we must address a
jurisdictional matter. Appellate courts have jurisdiction to review the final
judgments of trial courts in their district. Section 3(B)(2), Article IV, Ohio
Constitution; R.C. 2505.02; see also App.R. 4(A). In the event that a jurisdictional
issue is not raised by the parties, then we must raise it sua sponte.2 Davison v. Rini,
115 Ohio App.3d 688 (4th Dist.1996).
{¶7} As relevant to this case, a trial court’s judgment which defers or fails to
specify the amount of restitution is not a final appealable order pursuant to R.C.
2505.02. State v. Holdcroft, 3d Dist. Wyandot No. 16-10-01, 2010-Ohio-4290, ¶
17-19; In re Holmes, 70 Ohio App.2d 75 (1st Dist.1980). Moreover, a final order
of restitution must allocate the specific amount between and identify the recipient
victim(s). See State v. Hartley, 3d Dist. Union No. 14-09-42, 2010-Ohio-2018;
Holdcroft.
2
It is unclear why neither party addressed the jurisdictional issue of outstanding restitution in this matter
given that the trial court had expressly stated it had not issued a final appealable order.
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{¶8} In the instant case, at the sentencing hearing, when the State raised the
issue of restitution, the trial court responded, “I think I’ll just hold it all for the
restitution hearing.” (Nov. 2, 2021, Tr. at 5). Then, in pronouncing the sentence,
the trial court stated,
Also in preparation for sentencing the Court – it came to the
Court’s attention that claims for restitution for lost wages and
mileage and things of this nature are currently before the Ohio
Supreme Court. They have had oral argument in that case, but
the Supreme Court has not made a decision on that case, so the
Court hereby is going to set a subsequent restitution hearing on
the issue of whether or not those claims categories are expensible
as restitution in a criminal case in Ohio. I’ll keep an eye out for
that decision and notify counsel when it happens and send it to
you and we will schedule a subsequent hearing on that particular
issue after this hearing here today.
(Nov. 2, 2021, Tr. at 10-11).
{¶9} Before the trial court ever held the restitution hearing that it indicated it
would hold, Dearmond filed a notice of appeal. Clearly, “the judgment entry
appealed from left issues unresolved and contemplated further action to be taken by
the trial court.” State v. Kline, 3d Dist. Henry No. 7-10-09, 2010-Ohio-6378, ¶ 6.
This is particularly true given that the trial court filed an entry stating as much only
two days after it filed its initial sentencing entry. (Doc. No. 272).
{¶10} Based on the record before us, the judgment entry Dearmond appeals
from does not set forth a complete sentence and is thus not a final, appealable order.
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Holdcroft; Hartley; R.C. 2505.02. Accordingly, we lack jurisdiction over
Dearmond’s appeal and must dismiss it. Id.; Id.Conclusion
{¶11} For the foregoing reasons we lack jurisdiction over the matter and the
instant appeal must be dismissed.
Appeal Dismissed
MILLER and WILLAMOWSKI, J.J., concur.
/jlr
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