State v. Tye

[Cite as State v. Tye, 2021-Ohio-2765.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 109879
v. :
DESHAWN D. TYE, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: DISMISSED
RELEASED AND JOURNALIZED: August 12, 2021
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-15-601956-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Brian Kraft, Assistant Prosecuting Attorney,
for appellee.
Edward F. Borkowski, Jr., for appellant.
LISA B. FORBES, J.:
Appellant DeShawn Tye (“Tye”) appeals his convictions and sentences
by the trial court, arguing that his convictions were not supported by sufficient
evidence and were against the manifest weight of the evidence. Because the trial
court’s sentencing entry fails to dispose of all counts of which Tye was convicted,
and because no other journal entry appears in the record resolving all charges
against him, no final appealable order exists. We therefore lack jurisdiction to
address the merits of Tye’s appeal, and we must dismiss it.
I. The Proceedings Below
Tye was indicted on 34 counts consisting of, inter alia, attempted
murder, felonious assault, aggravated robbery, kidnapping, robbery, having
weapons while under disability, and failure to comply. The matter went to trial, and
the jury found Tye guilty of six counts of aggravated robbery, one count of
kidnapping, one count of failure to comply, four counts of having weapons while
under disability, and three counts of robbery (Counts 9, 11, 12, 13, 15, 16, 21, 22, 24,
25, 26, 28, 29, 30, and 32). Tye was sentenced to a total term of incarceration of 19
years.
With the exception of Count 30, the sentencing entry separately set
forth the sentence for each charge and any accompanying specification and also
acknowledged which charges merged. With regard to Count 30, the entry did not
state a sentence. Instead, it noted that “Count 30 merges with Count 30.” Count 30
was not discussed during the sentencing hearing, and there is no other judgment
entry referencing Count 30. At oral argument, the parties acknowledged that the
statement that Count 30 would merge with Count 30 was likely a clerical error, but
there was still no sentence imposed for Count 30. Consequently, Tye was not
sentenced on all of the counts for which he was convicted.
II. Law and Analysis
A court of appeals is a court of limited jurisdiction. The Ohio
Constitution limits appellate jurisdiction to the review of judgments or final orders.
Ohio Constitution, Article IV, Section 3(B)(2); CitiMortgage, Inc. v. Roznowski, 139
Ohio St.3d 299, 2014-Ohio-1984, 11 N.E.3d 1140, ¶ 10. A final appealable order, as
defined by R.C. 2505.02, includes an order that “affects a substantial right in an
action that in effect determines the action and prevents a judgment[.]” R.C.
2505.02(B)(1). In a criminal matter, that means the journal entry of sentence must
comply with Crim.R. 32(C) and the interpretation of that rule by the Supreme Court
of Ohio and this court. State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893
N.E.2d 163. “A judgment of conviction is a final order subject to appeal under R.C.
2505.02 when the judgment entry sets forth (1) the fact of the conviction, (2) the
sentence, (3) the judge’s signature, and (4) the time stamp indicating the entry upon
the journal by the clerk.” State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, 958
N.E.2d 142, paragraph one of the syllabus.
The Supreme Court of Ohio has held that a sentencing entry is final
and appealable when it fully resolves all counts “for which there were convictions.”
State ex rel. Davis v. Cuyahoga Cty. Court of Common Pleas, 127 Ohio St.3d 29,
2010-Ohio-4728, 936 N.E.2d 41, ¶ 2. See also State v. Jackson, 151 Ohio St.3d 239,
2017-Ohio-7469, 87 N.E.3d 1227, ¶ 11, quoting Davis at ¶ 2. Where a count in an
indictment is undisposed and remains pending, then an entry that disposes of some,
but not all of the charges, is not a final appealable order. State v. Craig, 159 Ohio
St.3d 398, 2020-Ohio-455, 151 N.E.3d 574, ¶ 21.
In the instant matter, because there is no disposition for Count 30,
the sentencing entry does not constitute a final appealable order, and we are without
jurisdiction to address the merits of Tye’s appeal.
III. Conclusion
Because Tye was not sentenced on all of the charges for which he was
convicted, the sentencing entry is not a final appealable order. We therefore lack
jurisdiction to consider the appeal, and it must be dismissed.
Accordingly, the appeal is 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.
LISA B. FORBES, JUDGE
EILEEN A. GALLAGHER, P.J., and
MICHELLE J. SHEEHAN, J., CONCUR