State v. Beyduk ( 2018 )

[Cite as State v. Beyduk , 2018-Ohio-1690.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
WARREN COUNTY
STATE OF OHIO, :
CASE NO. CA2017-10-144
Plaintiff-Appellee, :
OPINION
: 4/30/2018
-vs-
:
ANDREY P. BEYDUK, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM WARREN COUNTY COURT
Case No. 2006CRB00086
David P. Fornshell, Warren County Prosecuting Attorney, 520 Justice Drive, Lebanon, Ohio
45036, for plaintiff-appellee
Engel & Martin, LLC, Mary K. Martin, 4660 Duke Drive, Suite 101, Mason, Ohio 45040, for
defendant-appellant
M. POWELL, J.
{¶ 1} Defendant-appellant, Andrey Beyduk, appeals a decision of the Warren
County Court denying his motion for a new trial.
{¶ 2} Appellant, a Russian citizen and United States legal permanent resident, was
convicted of domestic violence in 2006 following a bench trial. Ten years later, upon
applying to become a United States citizen, appellant was informed by the United States
Department of Homeland Security that he would be deported due to his domestic violence
Warren CA2017-10-144
conviction. Consequently, in April 2017, appellant filed a motion for leave to file a motion
for a new trial ("motion for leave") pursuant to Crim.R. 33. Appellant argued that multiple
prejudicial errors occurred at trial, to wit, (1) the trial court did not advise him of his right to
have an interpreter and failed to provide him with an interpreter; (2) the trial court allowed
appellant's wife, the alleged victim, to be an interpreter; (3) the trial court allowed appellant
to waive his right to counsel without warning him that a conviction could have adverse
immigration consequences; and (4) the state's case was based upon hearsay.
{¶ 3} A hearing on the motion for leave was held on May 23, 2017. During the
hearing, the state informed the trial court that appellant's motion involved a two-step
process, requiring the trial court to first determine whether to grant the motion for leave
before a motion for a new trial could be filed. Upon inquiry from the trial court, defense
counsel advised the court that the motion for a new trial would be based upon the same
grounds and documentation as those of the motion for leave. The trial court then stated,
Then I'm going to grant the initial motion for leave to file for the
new trial and I will take under advisement the motion for new
trial, based on the documents that have been filed by both
[defense counsel] and the State.
{¶ 4} Subsequently, defense counsel orally moved for a new trial. The trial court
then stated that the matter would be taken under advisement. The trial court did not
journalize an entry reflecting that the motion for leave was granted. However, later that day,
the trial court issued a judgment entry that simply stated, "Motion Overruled."
{¶ 5} On June 12, 2017, appellant filed a motion and supporting memorandum,
asking the trial court "to issue findings of fact and conclusions of law for its decision of May
23, 2017 to overrule his motion for leave to file application for a new trial." On August 11,
2017, the trial court issued an "Order and Entry" comprised of three separate sections. As
applicable to this appeal, the introductory section of the entry explained that "this matter
came before the Court upon Defendant's Motion for Leave," "Defendant's Motion is based
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on [the following] four issues," "This Court held a hearing on this matter on May 23, 2017,"
and "After the hearing, this Court reviewed all motions, responses, transcript and law
presented. This Court overruled the motion for leave to file a motion for new trial. Defendant
filed a request for findings of fact and conclusions of law." (Emphasis added.) Under the
Proceedings heading, the trial court described in detail what happened at trial. Finally,
under the Findings of Fact and Conclusions of Law heading, the trial court addressed and
rejected each of the four issues raised by appellant before concluding, "Therefore, this
Court overrules Defendant's motion."
{¶ 6} Appellant now appeals, raising one assignment of error:
{¶ 7} THE TRIAL COURT ERRED IN DENYING APPELLANT'S REQUEST FOR A
NEW TRIAL.
{¶ 8} Appellant argues the trial court erred in denying his motion for a new trial. For
the reasons that follow, we find that this court has no jurisdiction to review the merits of this
appeal.
{¶ 9} A trial court's judgment entry denying a motion for leave to file a motion for a
new trial is a final appealable order. See State v. Morris, 2d Dist. Montgomery Nos. 26949
and 26960, 2017-Ohio-1196; State v. Collins, 10th Dist. Franklin No. 01AP-394, 2001 Ohio
App. LEXIS 4920 (Nov. 6, 2001); and State v. Brooks, 8th Dist. Cuyahoga No. 75522, 1999
Ohio App. LEXIS 3596 (Aug. 5, 1999). Likewise, a trial court's denial of a motion for a new
trial is a final appealable order. See State v. Moore, 188 Ohio App. 3d 726, 2010-Ohio-1848
(4th Dist.); State v. Workman, 12th Dist. Butler No. CA2002-12-302, 2003-Ohio-4242; and
Brooks (finding that because trial courts have no duty to issue findings of fact and
conclusions of law when denying a motion for a new trial in a criminal case, a trial court's
denial of a motion for a new trial is a final appealable order).
{¶ 10} Whether the trial court's May 23, 2017 judgment entry succinctly overruling
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appellant's motion was a denial of appellant's motion for leave or a denial of his motion for
a new trial, the judgment entry was a final appealable order. Accordingly, appellant was
required to file a notice of appeal within 30 days of the May 23, 2017 judgment entry. App.R.
3(A) and 4(A). Because appellant failed to do so, this court lacks jurisdiction to review the
merits of this appeal. See Collins.
{¶ 11} Alternatively, we note that while appellant challenges the denial of his motion
for a new trial on appeal, his argument is based entirely upon the erroneous premise that
his motion for leave was granted. Likewise, the state's brief erroneously asserts that "the
trial court granted Beyduk leave to file his motion for new trial and ultimately decided the
motion against him on its merits." However, appellant's motion asking the trial court to issue
findings of fact and conclusions of law to explain the basis of its May 23, 2017 judgment
entry "overrul[ing] his motion for leave to file application for a new trial," treated the trial
court's May 23, 2017 entry as denying his motion for leave, as did the trial court's August
11, 2017 Order and Entry.1 Appellant does not challenge the denial of his motion for leave
on appeal. Accordingly, the assignment of error, which addresses the merits of his motion
for a new trial is moot, and we need not address it. See State v. Jackson, 8th Dist.
Cuyahoga No. 105530, 2018-Ohio-276.
{¶ 12} Appeal dismissed.
HENDRICKSON, P.J., and RINGLAND, J., concur.
1. We are mindful that at the end of the hearing on appellant's motion for leave, the trial court stated, "Then
I'm going to grant the initial motion for leave to file for the new trial and I will take under advisement the motion
for new trial, based on the documents that have been filed by both [defense counsel] and the State." However,
it is well-established that a court speaks only through its journal entries and not by oral pronouncement or
through decisions. State v. Halsey, 12th Dist. Butler No. CA2014-10-211, 2015-Ohio-3405, ¶ 14. See also
State v. Smith, 12th Dist. Butler No. CA2009-02-038, 2010-Ohio-1721, ¶ 59 (without a journal entry, a decision
or finding of a court has no force or effect). Therefore, even though the trial court orally announced at the
hearing that it was granting appellant's motion for leave, the court was free to change its mind and deny the
motion for leave.
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