State v. Bohanon , 2011 Ohio 4108 ( 2011 )

[Cite as State v. Bohanon, 2011-Ohio-4108.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95907
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
TAMEKA BOHANON
DEFENDANT-APPELLANT
JUDGMENT:
DISMISSED
Criminal Appeal from the
Cuyahoga County Common Pleas Court
Case No. CR-535173
BEFORE: E. Gallagher, J., Blackmon, P.J., and Keough, J.
RELEASED AND JOURNALIZED: August 18, 2011
ATTORNEY FOR APPELLANT
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Kevin M. Cafferkey
2000 Standard Building
1370 Ontario Street
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Robert Botnick
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, J.:
{¶ 1} Tameka Bohanon appeals her sentence from the Cuyahoga County Court
of Common Pleas. Bohanon argues the trial court erred in imposing a term of
incarceration that was not proportionate to similarly situated offenders and that her trial
counsel rendered ineffective assistance in failing to raise this argument at sentencing.
For the reasons that follow, we dismiss for lack of a final appealable order.
{¶ 2} On March 16, 2010, a Cuyahoga County Grand Jury indicted Bohanon
with two counts of aggravated burglary with forfeiture and one- and three-year firearm
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specifications, two counts of aggravated robbery with forfeiture and one- and three-year
firearm specifications, two counts of felonious assault, failure to comply, improperly
handling firearms in a motor vehicle, and having weapons while under disability and
theft.
{¶ 3} On August 16, 2010, Bohanon retracted her plea of not guilty and pleaded
guilty to an amended count of burglary with the firearm specifications deleted, one count
of felonious assault, and one count of improperly handling firearms in a motor vehicle.
As a condition of her plea, Bohanon forfeited two handguns. The remaining charges
against Bohanon were nolled.
{¶ 4} On September 22, 2010, Bohanon was sentenced to seven years for
burglary, nine years for felonious assault, and eleven months for improperly handling
firearms in a motor vehicle. The transcript of the sentencing hearing reveals that the
trial court ordered the nine and seven years to be served consecutively with the eleven
months to be served concurrently, for a total prison term of sixteen years. Nonetheless,
the trial court’s journal entries of September 28, 2010 and May 25, 2011, reflect that the
trial court ordered all three prison terms to run consecutively for a total prison sentence
of sixteen years, eleven months. The parties to this appeal both state that Bohanon’s
total prison term is sixteen years.1
It is a fundamental principle of appellate review that the court speaks only
1
through its journal. Kaine v. Marion Prison Warden (2000), 88 Ohio St.3d 454, 727
N.E.2d 907; State v. Ahmed, Cuyahoga App. No. 88315, 2007-Ohio-2639. As such,
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{¶ 5} Bohanon appeals, raising the two assignments of error contained in the
appendix to this opinion.
{¶ 6} Similar to this Court’s holding in State v. Jones, Cuyahoga App. No.
95961, 2011-Ohio-3984, we find that the judgment from which Bohanon appeals is not a
final appealable order. Ohio law provides that appellate courts have jurisdiction to
review only final orders or judgments. Section III(B)(2), Article IV, Ohio Constitution;
R.C. 2505.02. If an order is not final and appealable, an appellate court has no
jurisdiction to review the matter.
{¶ 7} On April 27, 2011, this court, sua sponte, remanded the record in this
appeal to the trial court pursuant to App.R. 9(E) for correction of the trial court’s
judgment of conviction. We stated, in pertinent part, “[t]he trial court’s judgment of
conviction journalized on September 28, 2010 does not indicate the disposition of the
two forfeiture specifications attached to count 1. Crim.R. 32(C) imposes a mandatory
duty upon the trial court to set forth the plea, the verdict or findings, and the sentence for
each and every criminal charge and specification prosecuted. With respect to forfeiture
specifications, the judgment must describe the forfeited property and order the specific
property to be forfeited. State v. Byrd, Cuyahoga App. No. 91090, 2009-Ohio-1876.”
{¶ 8} In Byrd, this court in dismissing an appeal for lack of a final appealable
order regarding forfeiture specifications held, “the order Byrd seeks to appeal fails to
we shall note Bohanon’s sentence as sixteen years, eleven months.
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address the forfeiture specifications — it does not describe the forfeited property and it
does not order the specific property to be forfeited.” Id. at ¶8. Because the order did
not address the forfeiture specifications, this court found that it did not comply with
Crim.R. 32(C) and State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d
163, and thus was not a final appealable order. A judgment of conviction is a final
appealable order * * * “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.” Byrd at 5,
quoting Baker at the syllabus.
{¶ 9} Reviewing the trial court’s corrected judgment of conviction filed in the
instant matter, we find that it still does not comply with Byrd, Baker, and Crim.R. 32(C).
The pertinent part of the trial court’s corrected judgment entry provides: “Defendant
forfeits both of the guns.” We find that this vague and general statement does not
describe with specificity the forfeited property as required by Byrd. See, also, Jones,
supra.{¶ 10} Moreover, we cannot ascertain from the record what weapons Bohanon
was alleged to have owned or possessed in connection with the charged offenses and
what weapons are to be forfeited. Neither the indictment, bill of particulars, or the
State’s response to discovery identifies “both of the guns.”
{¶ 11} Accordingly, we lack jurisdiction to consider the appeal.
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Appeal dismissed.
It is ordered that appellee recover of appellant costs herein taxed.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, JUDGE
KATHLEEN ANN KEOUGH, J., CONCURS;
PATRICIA A. BLACKMON, P.J., DISSENTS
WITH SEPARATE OPINION ATTACHED
PATRICIA ANN BLACKMON, P.J., DISSENTING:
{¶ 12} I respectfully dissent from the majority opinion. I believe the trial court’s
judgment entry ordering “Defendant forfeits both of the guns” is specific enough to
constitute a valid forfeiture order. It clearly details that the weapons to be forfeited are
“guns” and that there were “two” of them involved in the case. I find this language is
more specific than in Bohanon’s co-defendant’s case, which we dismissed. State v.
Jones, Cuyahoga App. No. 95961. In Jones’s case the court ordered the defendant to
forfeit “all weapons,” which is a much more vague order. Therefore, I conclude the
judgment entry is a final, appealable order and would address the merits of the appeal.
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Appendix
Assignments of Error:
“I. The trial court erred in imposing a term of incarceration that is not
proportionate to similarly situated defendants.”
“II. Defendant-appellant was denied the effective assistance of counsel.”