State v. Torrey , 2010 Ohio 6460 ( 2010 )

[Cite as State v. Torrey, 2010-Ohio-6460.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ROSS COUNTY
STATE OF OHIO, : Case No. 10CA3165
:
Plaintiff-Appellee, :
: DECISION AND
v. : JUDGMENT ENTRY
:
TIMOTHY M. TORREY, :
: Released 12/28/10
Defendant-Appellant. :
______________________________________________________________________
APPEARANCES:
Timothy Young, OHIO PUBLIC DEFENDER, and Jessica S. McDonald, ASSISTANT
OHIO PUBLIC DEFENDER, Chillicothe, Ohio, for appellant.
Toni L. Eddy, Chillicothe Law Director, and Michele R. Rout, Chillicothe Assistant Law
Director, Chillicothe, Ohio, for appellee.
______________________________________________________________________
Harsha, J.
{¶1} Timothy Torrey appeals his conviction for one count of operating a vehicle
with marihuana metabolite in his urine. Torrey contends that the trial court erred when it
denied his motion to suppress his urine specimen and that the State violated his
constitutional right to a speedy trial. However, because the trial court’s sentencing entry
does not contain the guilty plea, the jury verdict, or the finding of the court upon which
the conviction was based, it does not constitute a final, appealable order. Thus, we lack
jurisdiction to consider this appeal and must dismiss it.
I. Facts
{¶2} Trooper Mizer of the Ohio State Highway Patrol initially issued Torrey a
citation charging him with (1) operating a vehicle under the influence of alcohol, a drug
Ross App. No. 10CA3165 2
of abuse, or a combination of them, in violation of R.C. 4511.19(A)(1)(a); and (2) failure
to yield the right of way at a stop sign, in violation of R.C. 4511.43(A). Later, Mizer
issued Torrey an additional citation, based on the same incident, charging him with
operating a vehicle with marihuana metabolite in his urine, in violation of R.C.
4511.19(A)(1)(j)(viii)(II). The State subsequently dismissed the original two charges and
the court sentenced Torrey on the marihuana metabolite charge. This appeal followed.
II. Assignments of Error
{¶3} Torrey assigns the following errors for our review:
I. THE COURT BELOW ERRED IN RULING THAT THE STATE OF
OHIO COMPLIED WITH THE DEPARTMENT OF HEALTH
REGULATIONS, SPECIFICALLY O.A.C. 371-53-05(F), IN THE
HANDLING OF THE DEFENDANT-APPELLANT’S URINE.
II. THE COURT BELOW ERRED IN RULING THAT THE
DEFENDANT-APPELLANT’S CONSTITUTIONAL RIGHTS TO A
SPEEDY TRIAL WERE NOT VIOLATED BY PROSECUTORIAL
DELAY.
III. No Final, Appealable Order
{¶4} Before we address the merits of the appeal, we must decide whether we
have jurisdiction to do so. Appellate courts “have such jurisdiction as may be provided
by law to review and affirm, modify, or reverse judgments or final orders of the courts of
record inferior to the court of appeals within the district[.]” Section 3(B)(2), Article IV,
Ohio Constitution; see, also, R.C. 2505.03(A); R.C. 2953.02. If a court’s order is not
final and appealable, we have no jurisdiction to review the matter and must dismiss the
appeal. Eddie v. Saunders, Gallia App. No. 07CA7, 2008-Ohio-4755, at ¶11. If the
parties do not raise the jurisdictional issue, we must raise it sua sponte. Sexton v.
Conley (Aug. 7, 2000), Scioto App. No. 99CA2655, 2000 WL 1137463, at *2.
Ross App. No. 10CA3165 3
{¶5} “[I]n order to decide whether an order issued by a trial court in a criminal
proceeding is a reviewable final order, appellate courts should apply the definitions of
‘final order’ contained in R.C. 2505.02.” State v. Baker, 119 Ohio St. 3d 197, 2008-Ohio-
3330, 893 N.E.2d 163, at ¶6, quoting State v. Muncie, 91 Ohio St. 3d 440, 444, 2001-
Ohio-93, 746 N.E.2d 1092. Under R.C. 2505.02(B)(1), an order is a final order if it
“affects a substantial right in an action that in effect determines the action and prevents
a judgment[.]” “Undoubtedly, a judgment of conviction qualifies as an order that ‘affects
a substantial right’ and ‘determines the action and prevents a judgment’ in favor of the
defendant.” Baker at ¶9.
{¶6} “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.” Baker at syllabus, explaining Crim.R. 32(C).
However, allowing multiple documents to create a final appealable order is generally
improper, and all required information must be present in a single document. Id. at ¶17.
Cf. State v. Ketterer, 126 Ohio St. 3d 448, 2010-Ohio-3831, 935 N.E.2d 9, at ¶17
(holding that “[c]apital cases, in which an R.C. 2929.03(F) sentencing opinion is
necessary, are clear exceptions to Baker’s ‘one document’ rule”). Thus, we cannot
simply review the record to determine the factual basis for Torrey’s conviction for
operating a vehicle with marihuana metabolite in his urine.1
{¶7} Here, the court’s sentencing entry does not contain “the guilty plea, the
1
Although we have reviewed the entire record and located a change of plea journal entry that indicates
Torrey pleaded “no contest,” the Supreme Court of Ohio’s pronouncement of the one document rule in
Baker, supra precludes our consideration of that entry in determining whether a final appealable order
exists.
Ross App. No. 10CA3165 4
jury verdict, or the finding of the court upon which the conviction is based.” The court
simply stated that Torrey had “been found guilty on the * * * charge.” The court made
no reference to the basis for his conviction. Thus, the court’s entry is not a final,
appealable order.
{¶8} Accordingly, we dismiss this appeal for lack of a final, appealable order.
However, we note that Torrey “has an adequate remedy at law by way of a motion in
the trial court requesting a revised sentencing entry.” Dunn v. Smith, 119 Ohio St. 3d
364, 2008-Ohio-4565, 894 N.E.2d 312, at ¶8.2
APPEAL DISMISSED.
2
Upon the trial court’s journalization of a final appealable order, the appellant may submit this appeal for
our immediate review upon the existing briefs and record by indicating so in the new notice of appeal.
Ross App. No. 10CA3165 5
JUDGMENT ENTRY
It is ordered that the APPEAL BE DISMISSED and that 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
Chillicothe Municipal Court to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of
this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure. Exceptions.
McFarland, P.J. & Abele, 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.