State v. Nesbitt

[Cite as State v. Nesbitt, 2023-Ohio-1276.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ROSS COUNTY
State of Ohio, : Case No. 22CA20
Plaintiff-Appellee, :
DECISION AND
v. : JUDGMENT ENTRY
Deshawn Nesbitt, :
RELEASED 4/18/2023
Defendant-Appellant. :
______________________________________________________________________
APPEARANCES:
Cassandra S. Goodpaster, Assistant State Public Defender, Office of the Ohio Public
Defender, Columbus, Ohio, for appellant.
Jeffrey C. Marks, Ross County Prosecuting Attorney, and Pamela C. Wells, Ross County
Assistant Prosecuting Attorney, Chillicothe, Ohio, for appellee.
______________________________________________________________________
Hess, J.
{¶1} Deshawn Nesbitt appeals from a judgment of the Ross County Court of
Common Pleas convicting him of felonious assault with a firearm specification and having
weapons while under disability. Nesbitt presents four assignments of error in which he
contends that the trial court erred in refusing to instruct the jury on negligent assault as a
lesser included offense of felonious assault, that his conviction was against the manifest
weight of the evidence, that the Reagan Tokes Law is unconstitutional, and that the
having weapons while under disability statute is unconstitutional. However, the record
reflects that Nesbitt was originally indicted on two counts of felonious assault and then
indicted again under the same case number on two counts of felonious assault with
firearm specifications and one count of having weapons while under disability. He was
Ross App. No. 22CA20 2
tried before a jury on the counts in the second indictment and acquitted of one count and
convicted of the other two counts and a firearm specification. However, the trial court did
not dispose of the counts in the first indictment via journal entry. Because of these
“hanging charges,” the entry from which Nesbitt appeals is not a final appealable order.
Therefore, we lack jurisdiction to address the merits of his appeal and dismiss it.
I. PROCEDURAL HISTORY
{¶2} On August 6, 2021, an indictment was filed charging Nesbitt with two counts
of felonious assault in violation of R.C. 2903.11, second-degree felonies. Both counts
alleged that on or about July 17, 2021, Nesbitt “did knowingly cause or attempt to cause
physical harm to another by means of a deadly weapon.” On August 9, 2021, the trial
court conducted an arraignment hearing at which Nesbitt pleaded not guilty.
{¶3} On August 27, 2021, a second indictment was filed under the same case
number charging Nesbitt with three counts: (1) Count One, felonious assault in violation
of R.C. 2903.11, a second-degree felony; (2) Count Two, felonious assault in violation of
R.C. 2903.11, a second-degree felony; and (3) Count Three, having weapons while under
disability in violation of R.C. 2923.13, a third-degree felony. As in the first indictment,
both counts of felonious assault in the second indictment alleged that on or about July 17,
2021, Nesbitt “did knowingly cause or attempt to cause physical harm to another by
means of a deadly weapon.” However, each felonious assault count in the second
indictment also included a firearm specification. On August 30, 2021, the trial court
conducted a second arraignment hearing at which Nesbitt pleaded not guilty to the
second indictment.
Ross App. No. 22CA20 3
{¶4} At the jury trial, the trial court and parties proceeded as if the second
indictment was the only indictment, and the jury considered only the charges and
specifications set forth in it, i.e., two felonious assault counts with firearm specifications
and the having weapons while under disability count. The jury found Nesbitt guilty of
Count One and the accompanying firearm specification, not guilty of Count Two, and
guilty of Count Three.
{¶5} On June 6, 2022, the trial court issued a judgment entry regarding the
verdict. The entry stated that on August 9, 2021, Nesbitt pleaded “not guilty to the charges
contained in the indictment, to wit: Felonious Assault, ORC Section 2903.11, a second
degree felony, Felonious Assault, ORC Section 2903.11, a second degree felony, and
Having Weapons While Under Disability, ORC Section 2923.13, a third degree felony.”
The entry stated that the jury found him “Guilty on Count One, Felonious Assault, Not
Guilty on Count Two, Felonious Assault, and Guilty on Count Three, Having Weapons
While Under Disability.” The entry did not mention the fact that there were two indictments
and that the jury considered only the charges and specifications set forth in the second
indictment. The entry also incorrectly indicated that Nesbitt pleaded not guilty to the
charges in the second indictment on August 9, 2021, when that was the date he pleaded
not guilty to the charges in the first indictment.
{¶6} On June 13, 2022, the trial court issued a judgment entry of sentence in
which it stated that Nesbitt had been found guilty of Count One, felonious assault, with a
firearm specification, and Count Three, having weapons while under disability. The court
imposed an aggregate sentence of 13.5 to 17.5 years in prison. Nesbitt filed a notice of
appeal from this entry.
Ross App. No. 22CA20 4
II. ASSIGNMENTS OF ERROR
{¶7} Nesbitt presents four assignments of error:
ASSIGNMENT OF ERROR NO. 1: The trial court erred in refusing to
instruct the jury on negligent assault when the evidence showed that the
defendant, at most, acted recklessly when handling the firearm, but not
knowingly, and recklessness is sufficient culpability for negligent assault but
not for felonious assault.
ASSIGNMENT OF ERROR NO. 2: Nesbitt’s conviction was against the
manifest weight of the evidence as the jury clearly lost its way in rendering
a guilty verdict.
ASSIGNMENT OF ERROR NO. 3: R.C. 2967.271, the Reagan Tokes Law,
violates Article I, Section 5 of the Ohio Constitution and the Sixth and
Fourteenth Amendments to the Constitution of the United States.
ASSIGNMENT OF ERROR NO. 4: R.C. 2923.13, the weapons-under-
disability statute that allows a juvenile adjudication to serve as a predicate
offense for an adult felony conviction, violates Article I, Section 5 of the Ohio
Constitution and the Sixth Amendment to [the] Constitution of the United
States.
III. LAW AND ANALYSIS
{¶8} Before we address the merits of the appeal, we must determine whether we
have jurisdiction to do so. Appellate courts “have such jurisdiction as may be provided
by law to review and affirm, modify, or reverse judgments or final orders of the courts of
record inferior to the court of appeals within the district * * *.” Ohio Constitution, Article
IV, Section 3(B)(2). “If a court’s order is not final and appealable, we have no jurisdiction
to review the matter and must dismiss the appeal.” Clifton v. Johnson, 4th Dist. Pickaway
No. 14CA22, 2015-Ohio-4246, ¶ 8. “In the event that the parties do not raise the
jurisdictional issue, we must raise it sua sponte.” Id. Our review of the record in this case
revealed a jurisdictional issue which prevents us from reaching the merits of the appeal.
Ross App. No. 22CA20 5
{¶9} “The General Assembly enacted R.C. 2505.02 to specify which orders are
final.” State v. Cutright, 4th Dist. Ross No. 20CA3718, 2021-Ohio-1582, ¶ 6, citing Smith
v. Chen, 142 Ohio St.3d 411, 2015-Ohio-1480, 31 N.E.3d 633, ¶ 8. “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 Supreme Court
of Ohio has * * * held that in a criminal case involving multiple counts, a final order need
not contain a reiteration of those counts that were resolved on the record in other ways,
such as dismissal, nolled counts, or not guilty findings.” Cutright at ¶ 7, citing State ex
rel. Rose v. McGinty, 128 Ohio St.3d 371, 2011-Ohio-761, 944 N.E.2d 672, ¶ 3. “But
unless the charges that do not result in conviction have been terminated by a journal
entry, the hanging charges prevent the conviction from being a final order under R.C.
2505.02(B) because it does not determine the action by resolving the entire case.”
(Emphasis added) Id., and cases cited therein.
{¶10} In this case, Nesbitt was charged in two indictments filed under the same
case number. Although the trial court and parties appear to have treated the first
indictment as if it had been dismissed and replaced by the second indictment, “ ‘ “[i]t is
axiomatic that a court speaks only through its journal entries.” ’ ” State v. Richards, 4th
Dist. Washington No. 20CA12, 2021-Ohio-389, ¶ 12, quoting State v. Payton, 4th Dist.
Scioto No. 14CA3628, 2015-Ohio-1796, ¶ 7, quoting State ex rel. Collier v. Farley, 4th
Dist. Lawrence No. 05CA4, 2005-Ohio-4204, ¶ 18. The trial court did not dispose of the
counts in the first indictment via journal entry. As a result, the two counts in the first
Ross App. No. 22CA20 6
indictment constitute “hanging charges” which prevent the trial court’s judgment entry of
sentence from being a final appealable order. See State v. Kuntz, 4th Dist. Ross No.
21CA3759, 2023-Ohio-669, ¶ 4, 7 (although trial court orally granted state’s motion to
dismiss two counts in first indictment, court failed to formally dismiss those counts via
journal entry, so judgment entry of sentence regarding counts in second indictment was
not a final appealable order). Therefore, we lack jurisdiction to address the merits of
Nesbitt’s appeal and dismiss it.
APPEAL DISMISSED.
Ross App. No. 22CA20 7
JUDGMENT ENTRY
It is ordered that the APPEAL IS DISMISSED and that appellant shall pay the
costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Ross
County Court of Common Pleas to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed 60 days upon the bail previously posted.
The purpose of a continued stay is to allow appellant to file with the Supreme Court of
Ohio an application for a stay during the pendency of proceedings in that court. If a stay
is continued by this entry, it will terminate at the earlier of the expiration of the 60-day
period, or the failure of the appellant to file a notice of appeal with the Supreme Court of
Ohio in the 45-day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of
the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of 60 days, the stay will terminate as of the date of such
dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
Smith, P.J. & Wilkin, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________
Michael D. Hess, 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.