State v. Grube , 2012 Ohio 2180 ( 2012 )

[Cite as State v. Grube, 2012-Ohio-2180.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
GALLIA COUNTY
STATE OF OHIO, :
:
Plaintiff-Appellee, : Case No. 10CA16
:
vs. : Released: May 4, 2012
:
KANSAS D. GRUBE, : DECISION AND JUDGMENT
: ENTRY
Defendant-Appellant. :
APPEARANCES:
Timothy Young, Ohio State Public Defender, and Katherine A. Szudy, Ohio State
Assistant Public Defender, Columbus, Ohio, for Appellant.
C. Jeffrey Adkins, Gallia County Prosecutor, and Eric R. Mulford, Gallia County
Assistant Prosecutor, Gallipolis, Ohio, for Appellee.
McFarland, J.:
{¶1} The grand jury indicted Appellant Kansas D. Grube for aggravated
murder, murder, and endangering children. A jury convicted Grube of aggravated
murder and endangering children, but rendered no verdict on the charge of murder.
The trial court sentenced Grube to life in prison without the possibility of parole
for aggravated murder and eight years for endangering children. Grube raises four
assignments of error, arguing 1) there was insufficient evidence to convict her of
aggravated murder; 2) the trial court erred when it did not instruct the jury on
lesser included offenses of reckless homicide and/or involuntary manslaughter; 3)
Gallia App. No. 10CA16 2
the trial court erred when it failed to merge the counts of aggravated murder and
endangering children for sentencing purposes; and, 4) trial counsel provided
ineffective assistance of counsel.
{¶2}Having reviewed the record, we find the trial court failed to dispose of
the second count charging Grube with murder, resulting in the lack of a final,
appealable order for us to review. Accordingly, we dismiss Grube’s appeal.
FACTS
{¶3}The Gallia County grand jury indicted Grube for three counts: Count
One, Aggravated murder in violation of R.C. 2903.01(C); Count Two, Murder in
violation of R.C. 2903.02(B); and, Count Three, Endangering Children in violation
of R.C. 2919.22(B)(1). Grube proceeded to trial on these counts and the court
instructed the jury on all three counts. The jury convicted Grube of aggravated
murder and endangering children, but returned no decision on the count of murder.
{¶4} The trial court filed the verdict forms and entered a judgment of guilt
against Grube on Count One and Count Three, yet failed to address Count Two for
murder. The state did not move to dismiss Count Two at any stage of the
proceeding.
LEGAL ANALYSIS
{¶5} “Ohio courts of appeals possess jurisdiction to review the final orders
of inferior courts within their district.” Portco, Inc. v. Eye Specialists, Inc., 173
Gallia App. No. 10CA16 3
Ohio App.3d 108, 2007-Ohio-4403, 877 N.E.2d 709, at ¶ 8, citing Section 3(B)(2),
Article IV, Ohio Constitution and R.C. 2501.02. “In a criminal matter, if a trial
court fails to dispose of all the criminal charges, the order appealed from is not a
final, appealable order.” State v. Robinson, 5th Dist. No. 2007 CA 00349, 2008-
Ohio-5885, at ¶ 11-12, citing State v. Coffman, 5th Dist. No. 06CAA090062, 2007-
Ohio-3765 and State v. Goodwin, 9th Dist. No. 23337, 2007-Ohio-2343. Such an
interlocutory order is not subject to appellate review. State v. Smith, 4th Dist. No.
10CA13, 2011-Ohio-1659, at ¶ 5.
{¶6} Here, the jury returned verdicts on Count One and Count Three, but,
per the instructions of the trial court, did not return a verdict on Count Two.1 The
record is devoid of any disposition as to Count Two and so it remains pending.
Thus, the trial court’s judgment entries finding Grube guilty of Count One and
Count Three and sentencing her to prison are not final, appealable orders.
Accordingly we have no jurisdiction to review Grube’s assignments of error and
we dismiss the instant appeal.
APPEAL DISMISSED.
Harsha, J., Concurring:
{¶7} Based upon concepts of judicial economy, I would like to agree with
the dissent. However, I cannot because of the axiom that a court of record speaks
1
The verdict form for Count 2 provided at the bottom, “Do not complete this Verdict Form if twelve jurors
found the Defendant ‘Guilty’ of Aggravated Murder as charged in Count One. Continue your deliberations as to
Count Three (Verdict Form 3) and the charge of Endangering Children.”
Gallia App. No. 10CA16 4
through its journal entries, not its oral pronouncements. State v. Miller, 127 Ohio
St.3d 407, 2010-Ohio-5705, at ¶12. As the Supreme Court of Ohio noted earlier in
In re Adoptions of Gibson (1986), 23 Ohio St.3d 170, 492 N.E.2d 146, at fn. 3:
“The oral announcement of a judgment or decree binds no one. It is axiomatic that
the court speaks from its journal. Any other holding would necessarily produce a
chaotic condition(.)”, citing Bittmann v. Bittmann (1934), 129 Ohio St. 123, 127,
194 N.E. 8.
{¶8} Thus I am forced to agree with the principle opinion that we lack
jurisdiction because there is no final appealable order.
Kline, J., Dissenting.
{¶9} I respectfully dissent for the same reason I dissented in State v.
Marcum, 4th Dist. Nos. 11CA8 & 11CA10, 2012-Ohio-572. Again, I believe that
a sentencing entry is final and appealable “[s]o long as the record reveals that all of
a defendant’s counts have been resolved[.]” State v. McClanahan, 9th Dist. No.
25284, 2010-Ohio-5825, ¶ 7.
{¶10} For the following reasons, I believe that the trial court resolved all of
the counts against Grube. “[T]he Fifth Amendment forbids * * * cumulative
punishment for a greater and lesser included offense.” Brown v. Ohio, 432 U.S.
161, 169, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); see also State v. Foust, 105 Ohio
St.3d 137, 2004-Ohio-7006, 823 N.E.2d 836, ¶ 143. And here, murder under R.C.
Gallia App. No. 10CA16 5
2903.02(B) is a lesser-included offense of aggravated murder under R.C.
2903.01(C). State v. Johnson-Millender, 5th Dist. No. 2004 CA 00288, 2005-
Ohio-4407, ¶ 16-25. Therefore, I believe that Count 2 was resolved in the
following manner. After the jury returned its verdict on Count 1, the trial court
stated the following: “Having found * * * the defendant guilty of Count 1, Count 2
is inapplicable, or not applicable I should say.” Transcript at 728. In other words,
the trial court acknowledged that Grube could not be convicted of Count 2 because
it is a lesser-included offense of Count 1. Based on this acknowledgement, I
would find that all of the counts against Grube have been resolved.
{¶11} Accordingly, I respectfully dissent, and I would address the merits of
Grube’s appeal.
Gallia App. No. 10CA16 6
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE APPEAL DISMISSED and that the
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
Gallia County Common Pleas Court 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.
Exceptions.
Harsha, J.: Concurs in Judgment and Opinion with Opinion.
Kline, J: Dissents with Opinion.
For the Court,
BY: _________________________
Matthew W. McFarland, 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.