State v. Cunningham

[Cite as State v. Cunningham, 2021-Ohio-795.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY, OHIO
STATE OF OHIO, : MEMORANDUM OPINION
Plaintiff-Appellee, :
CASE NO. 2021-P-0018
- vs - :
ERIK A. CUNNINGHAM, :
Defendant-Appellant. :
Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2019 CR
00022.
Judgment: Appeal dismissed.
Victor V. Vigluicci, Portage County Prosecutor, 241 South Chestnut Street, Ravenna,
OH 44266 (For Plaintiff-Appellee).
Donald J. Malarcik and John P. Stiles, 121 S. Main Street, Suite 520, Akron, OH
44308 (For Appellants).
MARY JANE TRAPP, P.J.
{¶1} Appellant, Erik A. Cunningham, through counsel, filed a Notice of Appeal
on February 12, 2021. The notice indicates that he appeals from a January 14, 2021
judgment entry, but no entry is attached. Instead, he attaches an incomplete and
uncertified copy of a transcript from a January 14, 2021 “Motion to Suppress” hearing in
the matter of State of Ohio v. Erik A. Cunningham, Case No. 2019 CR 00022, in the
Portage County Court of Common Pleas.
{¶2} Also attached to the Notice of Appeal is a copy of a “Motion for Findings of
Facts and Conclusions of Law” that appellant filed in Case No. 2019 CR 00022 on
January 27, 2021.
{¶3} Additionally, in a document captioned as “DESCRIPTION,” attached to the
notice, appellant indicates that the trial court overruled his written motion to appoint a
special master to review privileged communications. However, the trial court docket
reflects that the court has not issued a written judgment entry to date reflecting the
foregoing ruling.
{¶4} The Ohio Constitution gives courts of appeals authority over final orders of
trial courts. Ohio Constitution, Article IV, Section 3(B)(2).
{¶5} Moreover, final orders must be in writing. Oral pronouncements by a trial
court judge do not constitute final appealable orders because they are subject to
revision before journalization. State ex. rel. Marshall v. Glavas, 98 Ohio St.3d 297,
2003-Ohio-857, 784 N.E.2d 97, ¶ 5. “‘A court of record speaks only through its journal
and not by oral pronouncement or mere written minute or memorandum.’” Id., quoting
Schenley v. Kauth, 160 Ohio St. 109, 113 N.E.2d 625 (1953), paragraph one of the
syllabus.
{¶6} Pursuant to R.C. 2953.02, a court of appeals only possesses jurisdiction
to hear an appeal from a criminal case if the appeal is from a “judgment or final order.”
{¶7} In addition, R.C. 2505.02(B) defines a final appealable order, in part, as
the following:
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{¶8} “An order is a final order that may be reviewed, affirmed, modified, or
reversed, with or without retrial, when it is one of the following:
{¶9} “(1) An order that affects a substantial right in an action that in effect
determines the action and prevents a judgment;
{¶10} “(2) An order that affects a substantial right made in a special proceeding
or upon a summary application in an action after judgment;
{¶11} “(3) An order that vacates or sets aside a judgment or grants a new trial;
{¶12} “(4) An order that grants or denies a provisional remedy and to which both
of the following apply:
{¶13} “(a) The order in effect determines the action with respect to the
provisional remedy and prevents a judgment in the action in favor of the appealing party
with respect to the provisional remedy.
{¶14} “(b) The appealing party would not be afforded a meaningful or effective
remedy by an appeal following final judgment as to all proceedings, issues, claims, and
parties in the action.” R.C. 2505.02(B)(1)-(4).
{¶15} Furthermore, the Supreme Court of Ohio has stated that “in a criminal
case there must be a sentence which constitutes a judgment or a final order which
amounts ‘to a disposition of the cause’ before there is a basis for appeal.” State v.
Chamberlain, 177 Ohio St. 104, 106-107, 202 N.E.2d 695 (1964), quoting State v.
Bevacqua, 147 Ohio St. 20, 22, 67 N.E.2d 786 (1946).
{¶16} Here, there is no disposition of the matter below, and the trial court has
merely made an oral pronouncement of a ruling during a hearing that is not a final
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appealable order since no judgment was filed and journalized. Glavas, supra, at ¶ 5;
see State ex rel. Hansen v. Reed, 63 Ohio St.3d 597, 600, 589 N.E.2d 1324 (1992).
{¶17} The trial court docket reflects a pending Crim.R. 12(F) motion filed by
appellant before his Notice of Appeal was filed requesting that the trial court state its
findings regarding certain motions. No findings have been issued.
{¶18} Simply put, without a judgment entry, this court is without jurisdiction to
consider this appeal.
{¶19} Accordingly, the appeal is hereby dismissed for lack of jurisdiction.
THOMAS R. WRIGHT, J.,
MATT LYNCH, J.,
concur.
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