State v. Singh

[Cite as State v. Singh, 2011-Ohio-4119.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96049
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DAVANA SINGH
DEFENDANT-APPELLANT
JUDGMENT:
DISMISSED
Criminal Appeal from the
Cuyahoga County Common Pleas Court
Case No. CR-536131
BEFORE: E. Gallagher, J., Jones, P.J., and Cooney, J.
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RELEASED AND JOURNALIZED: August 18, 2011
ATTORNEYS FOR APPELLANT
Robert L. Tobik
Public Defender
BY: David M. King
Assistant Public Defender
310 Lakeside Avenue
Suite 200
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Tiffany Hill
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, J.:
{¶ 1} Davana Singh appeals from the decision of the trial court.
Singh argues that his convictions violate his Sixth Amendment right to
confront witnesses, that his convictions are against the manifest weight of
the evidence, and that his trial counsel rendered ineffective assistance.
Upon review of this record, this court is compelled to dismiss this case for
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lack of jurisdiction.
{¶ 2} In March 2010, Detective John Graves of the Cleveland Police
Department received a complaint that Singh was selling cigarettes, alcohol,
and marijuana to underage persons in his store located at 3425 Fulton Road.
After receiving the complaint Detective Graves met with the complainants
who were a mother and her seventeen-year-old daughter. During the
interview, the seventeen-year-old agreed to act as a confidential informant
(“CI”) and her mother approved the paperwork.
{¶ 3} On March 22 and 23, 2010, the CI conducted two buys from
Singh at the direction of Detective Graves. During both purchases, officers
searched the CI both before and after the buy and found her to be free of
contraband. The officers also fitted the CI with an audio and video
recording device and provided the CI with marked buy money. On both
dates, the CI purchased marijuana from Singh; the video surveillance
equipment captured the controlled purchases.
{¶ 4} Detective Graves issued a search warrant for Singh’s store and,
on March 23, 2010, executed the warrant. While searching the premises,
the officers found a pill bottle that they believe was used to store the
marijuana as well as a semi-automatic handgun that was missing its serial
number. The officers also found over $6,000 in cash, multiple cartons of
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cigarettes that did not have the Cuyahoga County tax stamp on them, and
an Ohio Directional Card on a shelf behind the counter. Singh denied
selling marijuana from the store.
{¶ 5} On April 27, 2010, a Cuyahoga County Grand Jury returned an
indictment charging Singh with one count of trafficking with a juvenile
specification, one count of trafficking with juvenile, firearm, and forfeiture
specifications, one count of possession of a defaced firearm with forfeiture
specifications, one count of possession of criminal tools with forfeiture
specifications, and one count of trafficking in or illegal use of food stamps
with forfeiture specifications. Singh elected to proceed to trial, and on
September 24, 2010, his jury trial began. At the close of the state’s case,
Singh moved for a judgment of acquittal, which the trial court granted as to
the juvenile specifications attached to Counts 1 and 2, and to Count 5 in its
entirety. That same day, the jury found Singh guilty of both trafficking
offenses as charged, but not guilty of the firearm specification, guilty of
possession of a defaced firearm as charged in the indictment, and guilty of
possession of criminal tools as charged.
{¶ 6} On October 25, 2010, the trial court sentenced Singh to one year
of community controlled sanctions with the warning that any violation of the
terms and conditions would result in a prison term of six months.
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{¶ 7} Singh appeals, raising the three assignments of error contained
in the appendix to this opinion. However, this court cannot address the
merits of this appeal because the court lacks jurisdiction to do so. The order
of sentence issued does not constitute a final appealable order.
{¶ 8} This court is compelled to dismiss on the authority of State v.
Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163, State v. Waters,
Cuyahoga App. No. 85691, 2005-Ohio-5137, and State v. Dumas, Cuyahoga
App. No. 95760, 2011-Ohio-2926. In this case, the trial court imposed a
single term of community controlled sanctions for all four of Singh’s
convictions, an error that renders us without jurisdiction to rule on the
merits of the instant appeal.
{¶ 9} Crim.R. 32(C) provides that a “judgment of conviction shall set
forth * * * the verdict, or findings, upon which each conviction is based, and
the sentence.” Thus, absent either a specific finding of guilt or the
imposition of sentence on each and every offense for which a defendant is
convicted, no final appealable order exists. Waters; State v. Garner,
Trumbull App. No. 2002-T-0025, 2003-Ohio-5222; State v. Collins (Oct. 18,
2001), Cuyahoga App. No. 79064. Without a final appealable order, this
court lacks jurisdiction to hear this appeal. Waters.
{¶ 10} In Garner, the Eleventh District noted that “[n]owhere in R.C.
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2929.15, which governs community control sanctions, does it state that if a
court chooses to sentence a person to something other than a prison term the
court may impose only a single term, regardless of the number of charges.”
Such a procedure “not only leaves one of the offenses without a sentence, but
it also prevents th[e appellate] court from determining to which offense the
given sentence actually applies. As a result, there is no final appealable
[order] for the [appellate] court to review.” Id.{¶ 11} This court adheres to the same analysis. In State v. Hicks,
Cuyahoga App. No. 84418, 2004-Ohio-6113, this court reminded the trial
court that pursuant to Crim.R. 32(C), the duty to set forth the verdict or
finding and the sentence for each and every criminal charge is “mandatory”;
therefore, an order that “fails to impose sentence for an offense for which the
offender was found guilty not only violates this rule, but renders the
resultant order non-final and not immediately appealable.”
{¶ 12} The journal entry of Singh’s sentence is defective since it neither
states which conviction is subject to community controlled sanctions nor
imposes a sentence for each conviction. It, therefore, does not constitute a
final appealable order. See Waters; Hicks. Consequently, this appeal is
dismissed.
It is ordered that appellee recover from appellant costs herein taxed.
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A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
EILEEN A. GALLAGHER, JUDGE
LARRY A. JONES, P.J., and
COLLEEN CONWAY COONEY, J., CONCUR
Appendix
Assignments of Error:
“I. Mr. Singh’s conviction violates his Sixth Amendment right
to confront witnesses and to present his defense because the
state did not reveal the identity of the confidential informant.”
“II. Defendant’s convictions for drug trafficking, possession of
defaced firearm, and possession of criminal tools were against
the manifest weight of the evidence.”
“III. Defendant Davana Singh was denied effective assistance
of counsel in violation of the Sixth and Fourteenth
Amendments to the U.S. Constitution and Article I, Section 10
of the Ohio Constitution.”