Logan v. Conkey

[Cite as Logan v. Conkey, 2012-Ohio-4687.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
HOCKING COUNTY
CITY OF LOGAN, :
:
Plaintiff-Appellee, : Case No. 11CA34
:
vs. : Released: October 1, 2012
:
PHILLIP J. CONKEY, : DECISION AND JUDGMENT
: ENTRY
Defendant-Appellant. :
_____________________________________________________________
APPEARANCES:
Benjamin E. Fickel, Logan, Ohio, for Appellant.
Jonah M. Saving, City of Logan Law Director, Logan, Ohio, for Appellee.
_____________________________________________________________
McFarland, J.:
{¶1} This is an appeal from a Hocking County Municipal Court
judgment entry, issued after a bench trial in which Appellant was found
guilty of one count of receiving stolen property, in violation of Logan City
Code Section 131.18(A), a first degree misdemeanor. On appeal, Appellant
contends that 1) the trial court erred to his prejudice when it rendered a
decision contrary to the manifest weight of the evidence; and 2) the trial
court erred by imposing court costs without notifying him that failure to pay
court costs may result in the court’s ordering him to perform community
Hocking App. No. 11CA34 2
service. However, because our review of the record indicates that the trial
court’s January 3, 2012, entry was not a final, appealable order, we are
without jurisdiction to consider this matter and therefore must dismiss the
appeal.
FACTS
{¶2} A complaint was filed against Appellant, Phillip Conkey, on
April 1, 2011, in the Hocking County Municipal Court, charging Appellant
with one count of receiving stolen property, a first degree misdemeanor, in
violation of Logan City Code Section 131.18(A). The complaint stemmed
from a police report filed by Charles Smith, claiming that Appellant had
stolen his laptop computer and pawned it a Cashland, located in Logan,
Ohio, and a subsequent police investigation confirming that the laptop had
been pawned by Appellant.
{¶3} The matter proceeded to a bench trial on September 6, 2011.
Appellee presented the testimony of Charles Smith in support of its case
against Appellant. Smith essentially claimed that Appellant had stolen his
laptop computer at some point in late January of 2011, while Appellant was
assisting Smith during a move to a new residence. Smith testified that he did
not give Appellant permission to pawn the computer, and he did not sell it to
Appellant. Appellant and his girlfriend testified on Appellant’s behalf at
Hocking App. No. 11CA34 3
trial. Appellant testified that he purchased the computer from Smith on
January 28, 2011, for $220.00. Smith’s girlfriend testified that she was
present at the time and witnessed the transaction between Appellant and
Smith.
{¶4} The trial court found Appellant guilty of receiving stolen
property by entry dated November 21, 2011. Appellant was subsequently
sentenced on January 3, 2012. A sentencing entry issued that date indicated
Appellant was sentenced to 180 days in jail, with 170 days of that time
suspended and credit for three days served, two years of community control,
and a $350.00 fine and costs. Further, the trial court stayed Appellant’s
sentence pending appeal. Appellant filed his notice of appeal on January 3,
2011, assigning the following errors for our review.1
ASSIGNMENTS OF ERROR
“I. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE
APPELLANT WHEN IT RENDERED A DECISION CONTRARY
TO THE MANIFEST WEIGHT OF THE EVIDENCE.
II. THE TRIAL COURT ERRED BY IMPOSING COURT COSTS
WITHOUT NOTIFYING MR. CONKEY THAT FAILURE TO PAY
COURT COSTS MAY RESULT IN THE COURT’S ORDERING
HIM TO PERFORM COMMUNITY SERVICE.”
1
Appellant initially filed his notice of appeal on December 19, 2011, prior to being sentenced. Appellant
subsequently filed a motion with this Court asking his prior filing be treated as a prematurely filed. We
granted his request on January 30, 2012.
Hocking App. No. 11CA34 4
LEGAL ANALYSIS
{¶5} Before reaching the merits of the assignments of error raised by
Appellant, we must first address a threshold jurisdictional issue related to
whether the January 3, 2012, entry constitutes a final, appealable order. “A
judgment of conviction is a final order subject to appeal under R.C. 2505.02
when it 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 January 3, 2012, entry
contains the sentence, the judge’s signature, and the time stamp indicating
the entry upon the journal by the clerk, but it does not state the fact of
conviction. As such, the trial court’s January 3, 2012, entry does not satisfy
the requirements for a final, appealable order.
{¶6} In reaching this decision, we acknowledge that the fact of
conviction is referenced in the trial court’s November 21, 2011, entry.
However, we cannot combine two documents to create a final, appealable
order. This is so because “[t]he Supreme Court of Ohio has held in a
noncapital criminal case that ‘[o]nly one document can constitute a final
appealable order.’” State v. Thompson, 4th Dist. No. 10CA3177, 2011-
Ohio-1564, ¶ 11, quoting State v. Baker, 119 Ohio St. 3d 197, 2008-Ohio-
Hocking App. No. 11CA34 5
3330, 893 N.E.2d 163, ¶ 17. Consequently, because there is no final,
appealable order, we conclude that we lack jurisdiction to consider this
appeal. State v. Baker at ¶ 6 (“A court of appeals has no jurisdiction over
orders that are not final and appealable.”).
{¶7} Accordingly, we must dismiss the appeal.
APPEAL DISMISSED.
Hocking App. No. 11CA34 6
JUDGMENT ENTRY
It is ordered that the APPEAL BE DISMISSED and that the Appellee
recover of Appellant costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing
the Hocking County Municipal Court to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of
the date of this entry.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Exceptions.
Harsha, J. & Kline, J.: Concur in Judgment and Opinion.
For the Court,
BY: _________________________
Matthew W. McFarland, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.