State v. Bilka , 2012 Ohio 3924 ( 2012 )

[Cite as State v. Bilka, 2012-Ohio-3924.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. Sheila G. Farmer, J.
Hon. Julie A. Edwards, J.
-vs-
Case No. 11CA127
DAVID BILKA
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Richland County Common
Pleas Court, Case No. 2011CR234
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: August 22, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JAMES J. MAYER, JR. WILLIAM C. FITHIAN, III
PROSEUCUTING ATTORNEY 111 N. Main Street
RICHLAND COUNTY, OHIO Mansfield, Ohio 44902
BY: JOHN C. NIEFT
Assistant Prosecuting Attorney
38 South Park Street
Mansfield, Ohio 44902
Richland County, Case No. 11CA127 2
Hoffman, P.J.
{¶1} Defendant-appellant David Bilka appeals his criminal convictions entered
by the Common Pleas Court of Richland County via Sentencing Entry filed on
November 10, 2011. The state of Ohio is plaintiff-appellee.
STATE OF THE CASE1
{¶2} Appellant was indicted on four counts: Count I, Burglary with a forfeiture
specification; Count II, Breaking and Entering with a forfeiture specification; Count III,
Receiving Stolen Property with a forfeiture specification; and Count IV, Safecracking
with a forfeiture specification. Appellant pled not guilty to the charges and the case
proceeded to jury trial.
{¶3} During closing argument, the prosecutor stated:
{¶4} “Now, I told you that I was going to probably just get rid of the breaking
and entering charge. After discussing that with counsel and the Court, we’ve decided to
let you decide” Transcript at p. 319. Following closing arguments, the trial court
instructed the jury on the elements of all four counts and also how to complete the
verdict forms for all four counts.
{¶5} The jury returned executed guilty verdict forms for Counts I, III, and IV and
the forfeiture specification. The jury did not return a verdict form on Count II, Breaking
and Entering. The jury was discharged with no mention being made by anyone as to
Count II.
{¶6} At the sentencing hearing held on November 9, 2011, the trial court
stated:
1
A rendition of the facts is unnecessary for our disposition of this Appeal.
Richland County, Case No. 11CA127 3
{¶7} “The record would indicate that the Defendant came before this Court on
the 31st day of October, 2011, charged with four counts of felony, Counts 1 and 2 being
charged in the alternative burglary and breaking and entering.” Transcript at p. 360.
The trial court filed its Sentencing Entry on November 10, 2011, reflecting Appellant’s
convictions for burglary, receiving stolen property, safecracking and the forfeiture
specification. No disposition was made with respect to the breaking and entering
charge.
{¶8} We have reviewed the transcript. It does not reflect the burglary and
breaking and entering charges were charged in the alternative. As noted supra, it is
clear Appellee desired the jury reach a verdict on that charge.
{¶9} While we recognize had the jury convicted Appellant on Count II, it would
likely to have been merged with Count I, the fact remains there has been no verdict nor
other disposition of Count II. Accordingly, we find no final appealable order exists and
this Court is without jurisdiction to entertain Appellant’s appeal at this time.
By: Hoffman, P.J.
Farmer, J. and
Edwards, J. concur
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ Sheila G. Farmer __________________
HON. SHEILA G. FARMER
s/ Julie A. Edwards___________________
HON. JULIE A. EDWARDS
Richland County, Case No. 11CA127 4
IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
DAVID BILKA :
:
Defendant-Appellant : Case No. 11CA127
For the reason stated in our accompanying Opinion, this appeal is ordered
dismissed. Costs to Appellant.
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ Sheila G. Farmer __________________
HON. SHEILA G. FARMER
s/ Julie A. Edwards___________________
HON. JULIE A. EDWARDS