State v. Boswell

[Cite as State v. Boswell, 2017-Ohio-4053.]
COURT OF APPEALS
ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. Craig R. Baldwin, J.
Plaintiff-Appellee : Hon. Earle E. Wise, J
:
-vs- :
: Case No. 16-COA-020
EDWARD M. BOSWELL :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Ashland County
Court of Common Pleas, Case No. 15-CRI-
038
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: May 30, 2017
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
CHRISTOPHER BALLARD MATTHEW MALONE
Assistant Prosecuting Attorney 10 East Main Street
110 Cottage Street Ashland, OH 44805
Third Floor
Ashland, OH 44805
Ashland County, Case No. 16-COA-020 2
Gwin, P.J.
{¶1} Appellant appeals the May 25, 2016 judgment entry of the Ashland County
Court of Common Pleas.
Facts & Procedural History
{¶2} On March 12, 2015, appellant Edward Boswell was indicted on one count
of burglary and one count of criminal damaging. Pursuant to a negotiated plea
agreement, appellant pled guilty to the count of burglary on April 16, 2015 and the criminal
damaging count was dismissed. On June 15, 2015, the trial court sentenced appellant to
one hundred and eighty days in jail and four years of community control. Further, the trial
court notified appellant at the sentencing hearing and in the sentencing hearing that if he
violated his community control, he could serve up to eighteen months in prison.
{¶3} On December 8, 2015, appellant was charged with violating the conditions
of his community control. Specifically, the complaint alleged two counts: (1) failure to
report to the Adult Parole Authority within twenty-four hours of his unsuccessful
termination from CROSSWAEH and (2) the unsuccessful termination from CROSSWAEH
Community Based Correctional Facility. On December 17, 2015, appellant was charged
with another community control violation for testing positive for THC.
{¶4} At an evidentiary hearing held on May 20, 2016, appellant pled guilty to the
community control violations contained in the December 8, 2015 complaint. This Court
can find no mention in the transcript of the December 17, 2015 complaint nor any mention
of the drug screen violation. However, in the judgment entry issued by the trial court May
23, 2016, the trial court stated it determined appellant voluntarily, knowingly, and
Ashland County, Case No. 16-COA-020 3
intelligently entered an admission to the community control violations filed with the court
on December 17, 2015.
{¶5} The trial court held a sanctioning hearing on May 24, 2016, and ordered
appellant to serve sixteen months in prison. The judgment entry the trial court issued on
May 25, 2016, captioned “Judgment Entry Sanctioning on the December 17, 2015
Community Control Violation” states the case “came on for sanctioning hearing on May
24, 2015, with regard to the community control violation filed on December 17, 2015.”
{¶6} Appellant appeals the judgment entry of the Ashland County Court of
Common Pleas and assigns the following as error:
{¶7} “I. THE TRIAL COURT ERRED BY ISSUING A SANCTION AGAINST
DEFENDANT ON A COMMUNITY CONTROL COMPLAINT FOR WHICH HE DID NOT
ENTER GUILTY PLEAS AND FAILING TO SANCTION DEFENDANT ON A SEPARATE
COMMUNITY CONTROL COMPLAINT FOR WHICH HE DID ENTER GUILTY PLEAS.”
I.
{¶8} In his assignment of error, appellant argues the trial court erred by issuing
a sanction or sentence against him on the December 17, 2015 community control
complaint because he was not found guilty of this violation. Further, that the trial court
erred by failing to sentence appellant on the December 8, 2015 complaint. Appellee
concedes the trial court erred in accepting pleas to the counts in the December 8, 2015
complaint but sentencing appellant on the count in the December 17, 2015 complaint.
{¶9} Though the trial court’s sanctioning entry states it sentenced appellant on
the December 17, 2015 complaint, appellant was never found guilty of the count in the
December 17, 2015 complaint. There are four ways a defendant can be convicted of a
Ashland County, Case No. 16-COA-020 4
criminal offense: (1) plead guilty; (2) plead no contest and be convicted upon a finding of
guilty by the court; (3) found guilty by a jury; and (4) found guilty by the court after a bench
trial. State v. Baker, 119 Ohio St. 3d 197, 2008-Ohio-3330, 893 N.E.2d 163. In this case,
appellant did not enter a guilty plea or no contest plea, and his case was not tried to a
jury or to the court. Since appellant was not found guilty of the December 17, 2015
complaint, the trial court erred in sentencing appellant on that count.
{¶10} Further, with regards to the failure of the trial court to sentence appellant on
the December 8, 2015 complaint to which appellant entered guilty pleas, this Court does
not have jurisdiction to decide that issue as there has been no sentence or sanction as a
result of the guilty pleas to the counts contained in the December 8, 2015 complaint. It is
a general sentencing principle that “a sentence must be pronounced before the process
of appellate review can be instituted from a final judgment of conviction.” State v.
Henderson, 58 Ohio St. 2d 171, 389 N.E.2d 494 (1979).
{¶11} To constitute a final appealable order, a judgment of conviction must
include: (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; Criminal Rule 32(C). Without these
provisions, the judgment entry of conviction cannot be a final order subject to appeal
under R.C. 2505.02. Id. In this case, the journal entry does not contain a sentence for
the counts appellant pled guilty to in the December 8, 2015 complaint. Accordingly, there
is no final appealable order with regards to appellant’s guilty pleas to the December 8,
2015 complaint. See R.C. 2505.02. A court of appeals has no jurisdiction over orders
Ashland County, Case No. 16-COA-020 5
that are not final and appealable. Ohio Constitution, Article IV, Section 3(B)(2); R.C.
2953.02.
{¶12} Based on the foregoing, we sustain appellant’s assignment of error. The
sentenced imposed on the December 17, 2015 complaint is vacated. The judgment of
the Ashland County Court of Common Pleas is reversed and remanded for sentencing
on the December 8, 2015 complaint and the disposal of the December 17, 2015
complaint.
By Gwin, P.J.,
Baldwin, J., and
Wise, Earle, J., concur