State v. Brewer , 2013 Ohio 5118 ( 2013 )

[Cite as State v. Brewer, 2013-Ohio-5118.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
MEIGS COUNTY
STATE OF OHIO, : Case No. 12CA9
:
Plaintiff-Appellee, :
: DECISION AND
v. : JUDGMENT ENTRY
:
CARL BREWER, :
: RELEASED: 11/15/13
Defendant-Appellant. :
______________________________________________________________________
APPEARANCES:
Michael R. Huff, Athens, Ohio, for appellant.
Colleen S. Williams, Meigs County Prosecuting Attorney, and Amanda Bizub-
Franzmann, Meigs County Assistant Prosecuting Attorney, Pomeroy, Ohio, for appellee.
______________________________________________________________________
Harsha, J.
{¶1} Carl Brewer pleaded guilty to one count of burglary and now appeals his
sentence, which imposed seven years in prison and $1000 in restitution. However,
because there are no journal entries that resolve all the charges filed against him, there
is no final, appealable order. Consequently, we lack jurisdiction to consider his appeal
and must dismiss it.
I. FACTS
{¶2} After the grand jury indicted Brewer with two counts of burglary in violation
of R.C. 2911.12(A)(2), he entered into an agreement to plead guilty to the second count
of burglary in exchange for dismissal of count one. The parties agreed that the state
would recommend a prison term not to exceed four years and Brewer would argue for
Meigs App. No. 12CA9 2
community control.1 The court accepted Brewer’s guilty plea and continued the matter
for sentencing.
{¶3} At the sentencing hearing, the court rejected the state’s recommendation
and sentenced Brewer to seven years in prison and ordered him to pay $1000 in
restitution to the victim. Brewer now appeals his sentence.
II. ASSIGNMENTS OF ERROR
{¶4} Brewer raises three assignments of error for our review:
1. “THE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF
COUNSEL AS GUARANTEED BY THE SIXTH AND FOURTEENTH
AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES
AND ART. I, SECTION 10 OF THE OHIO CONSTITUTION.”
2. “THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
SENTENCED APPELLANT TO SERVE A NEAR MAXIMUM SENTENCE
(7 YEARS OUT OF A POSSIBLE MAXIMUM 8 YEAR SENTENCE).”
3. “THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED
ITS DISCRETION WHEN IT SENTENCED APPELLANT TO PAY
RESTITUTION OF $1,000 TO THE VICTIM WITHOUT FIRST INQUIRING
OF THE APPELLANT’S ABILITY TO PAY AS REQUIRED BY ORC
2929.19(B)(6).”
III. LAW AND ANALYSIS
“No Final, Appealable Order”
{¶5} Initially, we must consider our jurisdiction to hear Brewer’s appeal. The
Ohio Constitution limits an appellate court’s jurisdiction to the review of “final orders” of
lower courts. Ohio Constitution, Article IV, Section 3(B)(2). Accordingly, we “must sua
sponte dismiss an appeal that is not from a final appealable order.” State v. Marcum,
4th Dist. Hocking Nos. 11CA8, 11CA10, 2012-Ohio-572, ¶ 6.
1
The written plea agreement that was filed as part of the record states that the state agreed to
“recommend a prison term not to exceed 4 yrs, 11 mos. * * *.” However, at the sentencing hearing the
state actually recommended a prison term of not more than four years. Both parties on appeal accept
that this was their plea agreement and thus, we will do likewise.
Meigs App. No. 12CA9 3
{¶6} To constitute a final, appealable order under R.C. 2505.02, a judgment of
conviction and sentence must satisfy the substantive provisions of Crim.R. 32(C) and
include: 1) the fact of conviction; 2) the sentence; 3) the judge's signature; and 4) the
time stamp indicating the entry upon the journal by the clerk. State v. Lester, 130 Ohio
St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142, paragraph one of the syllabus. “The
Supreme Court of Ohio has also determined that when a criminal case against a
defendant initially consists of more than one charge, it is not necessary that the
judgment of conviction includes the dispositions of charges that were terminated and do
not form the basis of the conviction.” Marcum at ¶ 6, citing State ex rel. Rose v.
McGinty, 128 Ohio St.3d 371, 2011-Ohio-761, 944 N.E.2d 672, ¶ 3. However, “unless
the charges that are not the basis of the conviction have been properly terminated by a
journal entry, they remain technically unresolved. This ‘hanging charge’ prevents the
conviction from being a final order under R.C. 2505.02(B) because it does not
determine the action, i.e. resolve the case.” Marcum at ¶ 6.
{¶7} Here, the October 26, 2012 sentencing entry from which Brewer appeals
contains the four requirements identified in Lester: it states he entered a “a plea of guilty
to one count of Burglary, a felony of the 2nd degree in violation of Ohio Revised Code
Section 2911.12(A)(2),” his sentence, the judge’s signature and time stamp by the clerk
of courts. However, the sentencing entry contains no reference to the other charge of
burglary that the state agreed to dismiss as part of the plea agreement.
{¶8} The August 27, 2012 “Guilty Plea & Finding of Guilty” entry states that
Brewer entered “a plea of guilty to the following offenses: CT, 2 Burglary” in violation of
R.C. 2911.12(A)(2), which the court accepted. The only reference to count one is in the
Meigs App. No. 12CA9 4
written plea agreement as part of the same entry, which states “No promises have been
made except as part of this plea agreement stated entirely as follows: State to dismiss
CT. 1+ recommend a prison term not to exceed 4 yrs, 11 mos.; Defendant to argue com
control with Monday/CBCF.” Because there is no other journal entry in the record that
disposes of the remaining charge of burglary, it is technically still pending. Thus, the
trial court’s October 26, 2012 sentencing entry is not a final, appealable order. See
State v. Furnier, 4th Dist. Scioto No. 12CA3474, 2013-Ohio-455, ¶ 7. If a separate
journal entry indicated that the prosecution had actually dismissed Brewer’s remaining
burglary charge, the sentencing entry in his case would be a final, appealable order.
See Marcum at ¶ 6. Although the court stated at the sentencing hearing: “On a
previous date, Mr. Brewer did in fact enter a plea of guilty to one count of burglary, a
felony of the second degree. All other charges herein were dismissed,” this is not
reflected in the sentencing entry or any other journal entry. And because “[a] court
speaks through its journal entry and not its oral pronouncements,” this statement cannot
be viewed as disposing of that charge in a manner that complies with R.C. 2505.02 and
Crim.R. 32(C). Id. Accordingly as the record now stands, we lack jurisdiction to address
Brewer’s appeal and must dismiss it.
APPEAL DISMISSED.
Meigs App. No. 12CA9 5
JUDGMENT ENTRY
It is ordered that the APPEAL IS DISMISSED. Appellant shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Meigs
County Court of Common Pleas to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as
of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
McFarland, P.J. & Hoover, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________
William H. Harsha, 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.