State v. Sherman , 2011 Ohio 5794 ( 2011 )

[Cite as State v. Sherman, 2011-Ohio-5794.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. Julie A. Edwards, J.
: Hon. Patricia A. Delaney, J.
v. :
: Case No. 2011-CA-0012
PATRICK R. SHERMAN :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Richland County Court of
Common Pleas Case No. 2009-CR-28H
JUDGMENT: DISMISSED
DATE OF JUDGMENT ENTRY: November 7, 2011
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
DANIEL J. BENOIT RANDALL E. FRY
Assistant Richland County Prosecutor 10 West Newlon Place
38 South Park Street Mansfield, Ohio 44902
Mansfield, Ohio 44902
[Cite as State v. Sherman, 2011-Ohio-5794.]
Delaney, J.
{¶ 1} On January 7, 2009, appellant was indicted by the Richland County Grand
Jury on one count of having weapons while under disability, a felony of the third degree,
with a firearm specification (Count 1); one count of carrying a concealed weapon, a
felony of the fourth degree (Count 2); one count of improper handling of a firearm in a
motor vehicle, a felony of the fourth degree (Count 3); two counts of trafficking in drugs,
felonies of the second and third degree, with forfeiture specifications for $1,255.00 in
cash (Counts 4 and 5), and two counts of possession of drugs, felonies of the second
and fourth degrees, with specifications for $1,255.00 in cash (Counts 6 and 7).
{¶ 2} Appellant initially entered into a plea agreement with the State, but this
Court found the plea was not entered knowingly or intelligently and the trial court erred
in accepting the plea. State v. Sherman, 5th Dist. No. 2009-CA-132, 2010-Ohio-3959.
The matter was remanded to the trial court.
{¶ 3} Following a jury trial, appellant was found guilty on Counts 1, 2, 3, 6 and
7. The jury hung on Counts 4 and 5. A sentencing hearing was held on January 21,
2011. At that time, the State indicated it would retry appellant on Counts 4 and 5. The
same day, appellant filed his notice of appeal.
{¶ 4} Appellant raises three Assignments of Error:
{¶ 5} “I. THE TRIAL COURT ERRED IMPOSING FINES AS PART OF THE
DEFENDANT-APPELLANT’S SENTENCE WITHOUT CONSIDERING THE
DEFENDANT-APPELLANT’S PRESENT AND FUTURE ABILITY TO PAY THE FINES.
Richland County, Case No. 2011-CA-0012 3
{¶ 6} “II. THE TRIAL COURT ERRED IN NOT GRANTING THE DEFENDANT-
APPELLANT’S REQUEST TO DISCHARGE HIM FOR VIOLATING HIS SPEEDY
TRIAL RIGHTS PURSUANT TO OHIO REVISED CODE SECTION 2945.71 AND OHIO
REVISED CODE SECTION 2945.73
{¶ 7} “III. THE TRIAL COURT ERRED TO THE DEFENDANT-APPELLANT’S
PREJUDICE BY OVERRULING THE DEFENDANT-APPELLANT’S MOTION TO
SUPPRESS.
{¶ 8} Before considering appellant’s assignments of error, we must first
determine whether appellant’s appeal has been taken from a final, appealable order.
See, State ex rel. White v. Cuyahoga Metro. Housing Auth., 79 Ohio St.3d 543, 544,
1991-Ohio-366 (whether subject matter jurisdiction properly lies may be raised sua
sponte by an appellate court).
{¶ 9} “Appellate courts have jurisdiction to review the final orders or judgments
of lower courts within their appellate districts.” Section 3(B)(2), Article IV, Ohio
Constitution. Absent a final order, an appellate court has no jurisdiction to review a
matter and such matter must be dismissed. Gen. Acc. Ins. Co. v. Ins. Co. of N. Am.
(1989), 44 Ohio St.3d 17, 20, 540 N.E.2d 266; Renner’s Welding and Fabrication, Inc. v.
Chrysler Motor Corp. (1996), 117 Ohio App.3d 61, 64, 689 N.E.2d 1015.
{¶ 10} This Court has consistently held that 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. Rothe, 5th Dist. No. 2008 CA 00044, 2009-Ohio 1852; State
v. Robinson, 5th Dist. No. 2008-Ohio-5885; State v. Huntsman (March 13, 2000), 5th
Dist. No. 1999-CA-00282.
Richland County, Case No. 2011-CA-0012 4
{¶ 11} In Robinson, supra at ¶ 11, we stated:
{¶ 12} “In the case of a hung jury, jeopardy does not terminate when a hung jury
is discharged, rather the case against the defendant remains pending until the
remaining charge is either retried and/or dismissed with prejudice. State v. Cole,
Cuyahoga App. No. 88722, 2007-Ohio-3076. Furthermore, although a dismissal of the
hung jury charge may be contemplated on the record, unless the dismissal is
documented by a signed journal entry which is filed with the court, the order of the trial
court remains interlocutory and is not a final, appealable order”, citing Huntsman, supra.
{¶ 13} In this case, the record reflects the jury was unable to reach a verdict on
the drug trafficking charges (Counts 4 and 5), and the State indicated it intended to retry
the appellant on the charges. The record reflects that the drug trafficking charges have
not been dismissed and the State has asked the trial court to schedule the charges for
trial. Therefore, the judgment entry appealed from is not a final, appealable order and
the appeal must dismissed. See also, State v. Clay, 11th Dist. No. 2009-T-0126, 2010-
Ohio-4558; State v. Sanchez, 2nd Dist. No. 2006-CA-154, 2009-Ohio-813.
Richland County, Case No. 2011-CA-0012 5
{¶ 14} Accordingly, the appeal is dismissed for lack of a final, appealable order.
By: Delaney, J.
Gwin, P.J. and
Edwards, J. concur.
PATRICIA A. DELANEY
W. SCOTT GWIN
JULIE A. EDWARDS
[Cite as State v. Sherman, 2011-Ohio-5794.]
IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
v. : JUDGMENT ENTRY
:
PATRICK R. SHERMAN :
:
Defendant-Appellant : Case No. 2011-CA-0012
:
For the reasons stated in our accompanying Memorandum-Opinion on file, the
appeal is dismissed. Costs assessed to appellant.
_________________________________
PATRICIA A. DELANEY
_________________________________
W. SCOTT GWIN
_________________________________
JULIE A. EDWARDS