State v. Holdcroft , 2010 Ohio 4290 ( 2010 )

[Cite as State v. Holdcroft, 2010-Ohio-4290.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
WYANDOT COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 16-10-01
v.
HENRY ALLEN HOLDCROFT, OPINION
DEFENDANT-APPELLANT.
Appeal from Wyandot County Common Pleas Court
Trial Court No. 98-CR-0044
Appeal Dismissed
Date of Decision: September 13, 2010
APPEARANCES:
Keith O’Korn for Appellant
Jonathan K. Miller for Appellee
Case No. 16-10-01
PRESTON, J.
{¶1} Defendant-appellant, Henry Allen Holdcroft (hereinafter
“Holdcroft”), appeals the Wyandot County Court of Common Pleas’ judgment of
conviction and sentence. For the reasons stated herein, we dismiss the appeal.
{¶2} On November 13, 1998, the Wyandot County Grand Jury indicted
Holdcroft on three (3) counts, including: count one (1) of aggravated arson in
violation of R.C. 2909.02(A)(3), a first degree felony; count two (2) of complicity
to commit aggravated arson in violation of R.C. 2923.03(A)(1), a first degree
felony; and count three (3) of arson in violation of R.C. 2909.03(A)(4), a third
degree felony. (Doc. No. 1).
{¶3} On June 9, 1999, the State filed a motion to dismiss count two of the
indictment on the basis that the charge was an allied offense of similar import to
count one, aggravated arson. (Doc. No. 58). The trial court granted the State’s
motion to dismiss count two on June 25, 1999. (Doc. No. 79).
{¶4} On July 6-9, 1999, a jury trial was held on the remaining two counts
of the indictment against Holdcroft. (Scheduling Order, Doc. No. 49). The jury
returned guilty verdicts on both counts. (Doc. Nos. 106-107). On July 29, 1999,
the trial court filed a judgment entry of conviction. (Doc. No. 114).
{¶5} On September 10, 1999, the trial court sentenced Holdcroft to ten
(10) years imprisonment on count one, aggravated arson, and five (5) years
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imprisonment on count three, arson. (Sept. 13, 1999 JE, Doc. No. 116). The trial
court ordered “that the sentence imposed for Count Three shall be served
consecutively to the sentence imposed in Count One.” (Id.). Holdcroft was
ordered to make restitution to Kathy Hurst (the victim), or the insurance carrier, in
the sum of $5,775.00, and $400.00 to Eric Goodman. (Id.). The trial court also
notified Holdcroft “that a period of post-release control shall be imposed,” and
that if he violated his post-release control further restrictions upon his liberty could
follow as a consequence. (Id.). Holdcroft was also taxed with the costs of
prosecution and all other fees permitted under R.C. 2929.18(A)(4). (Id.).
{¶6} On September 14, 1999, Holdcroft filed a notice of appeal pro se.
(Doc. No. 117). The trial court thereafter appointed appellate counsel, and the
appeal was assigned case no. 16-99-04. (Doc. Nos. 124, 125). The State filed a
notice of cross-appeal on October 13, 1999 related to the trial court’s judgment
entry concerning the admission of other acts evidence under Evid.R. 404(B).1
(Doc. No. 130). On appeal, Holdcroft asserted one assignment of error arguing
that his convictions were against the manifest weight of the evidence. State v.
Holdcroft (Mar. 31, 2000), 3d Dist. No. 16-99-04, at *1. This Court overruled
Holdcroft’s assignment of error, sustained the State’s assignment of error, and
upheld the convictions. Id.1
This Court granted the State leave to file this appeal in the interests of justice even though the State
mistakenly filed the appeal with this Court rather than the trial court. (See Oct. 29, 1999 JE, Doc. No. 130).
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{¶7} While his direct appeal was pending before this Court, Holdcroft
filed a motion for the appointment of counsel in order to pursue post-conviction
relief. (Doc. No. 131). The trial court granted Holdcroft’s motion and appointed
counsel on February 3, 2000. (Doc. No. 132).
{¶8} On May 5, 2000, Holdcroft, pro se, filed a notice of appeal to the
Ohio Supreme Court from this Court’s March 31, 2000 decision. (Doc. No. 134).
The Ohio Supreme Court, however, declined review. State v. Holdcroft (2000), 89
Ohio St.3d 1464, 732 N.E.2d 997.
{¶9} On June 9, 2000, Holdcroft, through appointed appellate counsel,
filed a motion for a new trial, along with a motion to withdraw as appellate
counsel. (Doc. Nos. 135-36). The trial court granted the motion to withdraw but
denied the motion for a new trial. (Doc. Nos. 138, 141). On June 26, 2000,
Holdcroft filed a motion for judicial release, which the trial court also denied.
(Doc. Nos. 135, 139).
{¶10} On July 13, 2006, Holdcroft filed a “motion to vacate or set aside
and modify sentence pursuant to R.C. 2945.25 (A) & Crim.R. 52(B).” (Doc. No.
161). On July 20, 2006, the trial court overruled the motion, finding it was
untimely and lacked substantive merit “as the Defendant was not convicted of
allied offenses of similar import. There were separate and distinct felonies
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committed by the Defendant, one involving a dwelling and the other involving an
automobile.” (Doc. No. 163).
{¶11} On August 16, 2006, Holdcroft, pro se, filed a notice of appeal from
the trial court’s denial of his motion. (Doc. No. 165). On appeal, Holdcroft argued
that his sentence was void because he was sentenced on two offenses that were
allied offenses of similar import. This Court overruled Holdcroft’s assignment of
error, finding that his motion was an untimely post-conviction motion, and, under
a plain error analysis, that the offenses were not allied offenses of similar import.
State v. Holdcroft, 3d Dist. No. 16-06-07, 2007-Ohio-586.
{¶12} On December 11, 2009, the State filed a motion to correct
Holdcroft’s sentence pursuant to R.C. 2929.191. (Doc. No. 186). On December
30, 2009, the State filed a motion for a de novo sentencing hearing to correct
Holdcroft’s sentence pursuant to State v. Singleton, 124 Ohio St.3d 173, 2009-
Ohio-6434, 920 N.E.2d 958. (Doc. No. 195). On January 5, 2010, the trial court
granted the State’s motion for a de novo sentencing hearing. (Doc. No. 198).
{¶13} On January 26, 2010, the trial court conducted a de novo sentencing
hearing. (Feb. 2, 2010 JE, Doc. No. 205). The trial court sentenced Holdcroft to
ten (10) years on count one and five (5) years on count three. (Id.). The trial court
further ordered that the term of imprisonment imposed on count three be served
consecutively to the term of imprisonment imposed on count one for an aggregate
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term of fifteen (15) years. (Id.). The trial court notified Holdcroft that he would be
subject to five (5) years of mandatory post-release control as to count one and
three (3) years of optional post-release control as to count three after
imprisonment. (Id.); (Jan. 26, 2010 Tr. at 23). The trial court noted that the terms
of post-release control would not be served consecutively to each other. (Feb. 2,
2010 JE, Doc. No. 205); (Jan. 26, 2010 Tr. at 23). The trial court also ordered that
Holdcroft “pay restitution to Kathy Hurst, or the insurance carrier, in the sum of
$5,775.00; and make restitution to Eric Goodman in the amount of $400.00.” (Feb.
2, 2010 JE, Doc. No. 205).
{¶14} On February 12, 2010, Holdcroft filed a notice of appeal from the
trial court’s judgment entry of sentence, which is the present appeal. (Doc. No.
210). Holdcroft now appeals raising the following nine (9) assignments of error:
ASSIGNMENT OF ERROR NO. I
THE COURT LACKED JURISDICTION TO IMPOSE
MANDATORY POST-RELEASE CONTROL UPON THE
APPELLANT.
ASSIGNMENT OF ERROR NO. II
THE CONSECUTIVE, MAXIMUM SENTENCES VIOLATED
THE 6TH AMENDMENT TO THE U.S. CONSTITUTION, AND
THE DUE PROCESS CLAUSES CONTAINED IN THE OHIO
AND U.S. CONSTITUTIONS.
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ASSIGNMENT OF ERROR NO. III
THE MAXIMUM, CONSECUTIVE SENTENCES AND THE
RESTITUTION ORDER WERE CONTRARY TO LAW AND
ABUSIVE.
ASSIGNMENT OF ERROR NO. IV
THE TRIAL COURT ERRED IN CONVICTING AND
SENTENCING THE APPELLANT ON AGGRAVATED
ARSON AND ARSON COUNTS IN VIOLATION OF THE
DOUBLE JEOPARDY CLAUSE OF THE 5TH AMENDMENT
OF THE U.S. CONSTITUTION, ARTICLE 1 SECTION 10 OF
THE OHIO CONSTITUTION AND OHIO’S MULTIPLE-
COUNT STATUTE.
ASSIGNMENT OF ERROR NO. V
THE SENTENCE SHOULD BE REVERSED AS IT
VIOLATES CRIMINAL RULE 32, AND THE 5TH, 6TH AND
14TH AMENDMENTS TO THE U.S. CONSTITUTION,
BECAUSE IT WAS IMPOSED OVER TEN YEARS AFTER
THE GUILTY VERDICT.
ASSIGNMENT OF ERROR NO. VI
THE COURT ERRED WHEN IT FAILED TO CHANGE THE
VENUE OR GRANT A MISTRIAL DUE TO JURY TAINT
AND JURY MISCONDUCT THAT VIOLATED THE 6TH AND
14TH AMENDMENTS TO THE U.S. CONSTITUTION, AND
ARTICLE 1, SECTIONS 10 AND 16 OF THE OHIO
CONSTITUTION.
ASSIGNMENT OF ERROR NO. VII
THE COURT ERRED IN ADMITTING OTHER ACTS
EVIDENCE IN VIOLATION OF EVID.R. 403 AND 404, THUS
DEPRIVING APPELLANT OF A FAIR TRIAL UNDER THE
6TH AND 14TH AMENDMENTS TO THE U.S.
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CONSTITUTION, AND ARTICLE 1, SECTIONS 10 AND 16
OF THE OHIO CONSTITUTION.
ASSIGNMENT OF ERROR NO. VIII
APPELLANT’S CONVICTION WAS NOT SUPPORTED BY
THE SUFFICIENCY OF THE EVIDENCE IN VIOLATION
OF THE DUE PROCESS CLAUSE OF THE 14TH
AMENDMENT TO THE U.S. CONSTITUTION, AND
ARTICLE 1, SECTIONS 1 & 16 OF THE OHIO
CONSTITUTION, AND THE CONVICTIONS WERE
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
ASSIGNMENT OF ERROR NO. IX
TRIAL COUNSEL RENDERED INEFFECTIVE
ASSISTANCE OF COUNSEL IN VIOLATION OF THE 6TH
AMENDMENT TO THE U.S. CONSTITUTION AND
ARTICLE 1, SECTIONS 10, 16 OF THE OHIO
CONSTITUTION.
{¶15} Before this Court may address Holdcroft’s assignments of error, we
must first determine whether jurisdiction exists to hear this appeal.
{¶16} The Courts of Appeals in Ohio has appellate jurisdiction over “final
appealable orders.” Section 3(B)(2), Article IV of the Ohio Constitution. If an
appealed judgment is not a final order, the Appellate Court has no jurisdiction to
consider it and the appeal must be dismissed. State v. Sandlin, 4th Dist. No.
05CA23, 2006-Ohio-5021, ¶9, citing Davison v. Rini (1996), 115 Ohio App.3d
688, 692, 686 N.E.2d 278; Prod. Credit Assn. v. Hedges (1993), 87 Ohio App.3d
207, 210, 621 N.E.2d 1360; Kouns v. Pemberton (1992), 84 Ohio App.3d 499,
501, 617 N.E.2d 701. Moreover, this Court must raise jurisdictional issues sua
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sponte. Sandlin, 2006-Ohio-5021, at ¶9. See, also, In re Murray (1990), 52 Ohio
St.3d 155, 159-60, 556 N.E.2d 1169, at fn. 2; Whitaker-Merrell Co. v. Geupel
Const. Co. (1972), 29 Ohio St.2d 184, 186, 280 N.E.2d 922.
{¶17} R.C. 2505.02 defines a final order, in relevant part, as: “[a]n order
that affects a substantial right in an action that in effect determines the action and
prevents a judgment.” R.C. 2505.02(B)(1). Since R.C. 2505.02(B)(1) requires a
final order to “determine[] the action” and “prevent[] a judgment,” “‘[a] judgment
that leaves issues unresolved and contemplates that further action must be taken is
not a final appealable order.’” State ex rel. Keith v. McMonagle, 103 Ohio St.3d
430, 2004-Ohio-5580, 816 N.E.2d 597, ¶4, quoting Bell v. Horton (2001), 142
Ohio App.3d 694, 696, 756 N.E.2d 1241. Furthermore, “‘[f]or an order to
determine the action and prevent a judgment for the party appealing, it must
dispose of the whole merits of the cause or some separate and distinct branch
thereof and leave nothing for determination of the court.’” State ex rel. Bd. of State
Teachers Retirement Sys. of Ohio v. Davis, 113 Ohio St.3d 410, 2007-Ohio-2205,
865 N.E.2d 1289, ¶45, quoting State ex rel. Downs v. Panioto, 107 Ohio St.3d
347, 2006-Ohio-8, 839 N.E.2d 911, ¶20.
{¶18} In pertinent part, the trial court ordered that Holdcroft “pay
restitution to Kathy Hurst, or the insurance carrier, in the sum of $5,775.00.” (Feb.
2, 2010 JE, Doc. No. 205) (Emphasis added). In State v. Kuhn, we found that a
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restitution order must set forth “the amount of restitution [or] the method of
payment” in order to be a final appealable order under R.C. 2505.02. 3d Dist. No.
4-05-23, 2006-Ohio-1145, ¶8, citing In re Holmes (1980), 70 Ohio App.2d 75, 77,
434 N.E.2d 747 and In re Zakov (1995), 107 Ohio App.3d 716, 669 N.E.2d 344.
More recently, in State v. Hartley this Court was presented with a judgment entry
that ordered the defendant to pay restitution “to the victims herein in the total
amount of $32,275.57.” 3d Dist. No. 14-09-42, 2010-Ohio-2018, ¶5. This Court
determined that the judgment entry in Hartley was not a final appealable order
under R.C. 2505.02(B)(1), reasoning as follows:
[T]he November 2009 Judgment Entry did not list any victims,
did not describe how the restitution would be allocated among the
victims, and did not incorporate any document providing this
information. Accordingly, we find that the judgment entry
appealed from left unresolved issues and contemplated further
action. As such, the judgment entry was not a final appealable
order, and this Court is without jurisdiction to determine this
appeal.
Id. (emphasis added).
{¶19} Like the judgment entry in Hartley, the judgment entry here fails to
allocate the $5,775.00 in restitution between the victim, Kathy Hurst, and the
insurance company or incorporate any document reflecting the allocation. While
the total amount of restitution ordered by the trial court is equal to the amount of
damage sustained by the Hurst’s vehicle as a direct result of Holdcroft’s criminal
conduct, the record indicates that Hurst’s insurance company compensated her for
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the damages (or paid for the repairs), minus her deductible. (Estimate, State’s Ex.
60); (See, e.g., PSI at 7). Therefore, the judgment entry leaves unresolved the
exact amount owed to Hurst and the insurance company, respectively. As such,
the judgment entry appealed from is not a final appealable order as provided in
R.C. 2505.02(B)(1) over which this Court may exercise jurisdiction. Hartley,
2010-Ohio-2018, at ¶5.
{¶20} Holdcroft’s appeal is, therefore, dismissed for lack of jurisdiction.
Appeal Dismissed
WILLAMOWSKI, P.J. and ROGERS, J., concur.
/jlr
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