State v. McCall , 2018 Ohio 3306 ( 2018 )

[Cite as State v. McCall, 2018-Ohio-3306.]
COURT OF APPEALS
COSHOCTON COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. John W. Wise, P.J.
Plaintiff - Appellee : Hon. W. Scott Gwin, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
EUGENE B. MCCALL : Case No. 2018CA0002
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Coshocton County
Court of Common Pleas, Case Nos.
16CR0062 and 16CR0097
JUDGMENT: Dismissed
DATE OF JUDGMENT: August 16, 2018
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JASON W. GIVEN EUGENE B. MCCALL, pro se
Coshocton County Prosecutor #732-204
318 Chestnut Street 15708 McConnelsville, Ohio 43724
Coshocton, Ohio 43812 Caldwell, Ohio 43724
Coshocton County, Case No. 2018CA0002 2
Baldwin, J.
{¶1} Appellant appeals from the Entry of the Coshocton County Court of
Common Pleas denial of his petition for post-conviction relief. The Appellee is the State
of Ohio.
STATEMENT OF FACTS AND THE CASE
{¶2} The facts giving rise to the charges filed against Appellant are unnecessary
for the resolution of this appeal and therefor they are omitted.
{¶3} In Case Number 16 CR 0062 Appellant was charged by indictment with one
count of having weapons while under disability, a felony of the third degree pursuant to
R.C. 2923.13(A)(3) [Count I]; one count of trafficking in cocaine, a felony of the second
degree pursuant to R.C. 2925.03(A)(2) and (C)(4)(d) [Count II]; one count of trafficking in
cocaine, a felony of the fourth degree pursuant to R.C. 2925.03(A)(1) and (C)(4)(b) [Count
III]; and one count of trafficking in cocaine, a felony of the fourth degree pursuant to R.C.
2925.03(A)(1) and (C)(4)(b) [Count IV].
{¶4} Count II was accompanied by two forfeiture specifications, one related to
$1728 in cash and the other related to the 1994 Chevrolet Corvette.
{¶5} In case number 16 CR 0097, Appellant was charged by indictment with one
count of possession of cocaine, a felony of the fifth degree pursuant to R.C. 2925.11(A)
and (C)(4). The single-count indictment also included a forfeiture specification relating to
$4510 in cash.
{¶6} On November 18, 2016, an amended indictment was filed in case number
16 CR 0062 which added three counts to those listed above: one count of drug
possession [heroin], a felony of the fifth degree pursuant to R.C. 2925.11(A) and (C)(6)(a)
Coshocton County, Case No. 2018CA0002 3
[Count V]; one count of drug possession [hydrocodone], a felony of the fifth degree
pursuant to R.C. 2925.11(A) and (C)(2)(a) [Count VI]; and one count of possession of
drugs [buprenorphrine], a felony of the fifth degree pursuant to R.C. 2925.11(A) and
(C)(2)(a) [Count VII].
{¶7} On December 9, 2016, Appellee moved to join both cases pursuant to Crim.
R. 8 and 13. The trial court granted the motion and the cases were consolidated.
{¶8} On January 24, 2017, Appellant changed his pleas to no contest to Counts
I through VII, and the forfeiture specifications, in case number 16 CR 0062, although
Count II was amended to a felony of the fourth degree. Appellant also entered a
negotiated plea of no contest to the sole count in the indictment in case number 16 CR
0097.
{¶9} In exchange for Appellant's pleas of no contest, Appellee agreed to
recommend a prison term of six years (concurrent with a term of 11 months in 16 CR
0097); not to oppose a pre-sentence investigation (P.S.I.); not to pursue charges from a
traffic stop on September 17, 2016; and to return the $2,148 seized during that stop.
{¶10} The trial court sentenced Appellant to an aggregate prison term of six years
and advised Appellant of the optional term of post-release control and penalties for any
violation. The trial court journalized Appellant’s sentence in both cases on January 30,
2017.
{¶11} Appellant appealed his sentence and the trial transcript was filed in this
Court on April 13, 2017. We overruled Appellant’s assignments of error and affirmed the
trial court’s decision. State v. McCall, 5th Dist. Coshocton No. 2017CA0002, 2017-Ohio-
7860.
Coshocton County, Case No. 2018CA0002 4
{¶12} On March 8, 2018, Appellant, pro se, filed his first petition for post-conviction
relief alleging the sentences imposed were void. Appellee opposed the motion and, on
March 20, 2018, the Court journalized its entry denying the motion, without a hearing,
finding that “the defendant’s motion to be not well taken and said motion is denied.”
Appellant filed a reply to Appellee’s opposition on March 29, 2018 and a notice of appeal
on April 24, 2018.
{¶13} Appellant submitted a single assignment of error:
{¶14} “I. TRIAL COURT ERRED WHEN DENYING APPELLANT’S MOTION TO
VACATE THE VOID JUDGMENTS IN 16CR0062 AND 16CR0097, WHEN PLAIN
ERROR IS PRESENT.”
ANALYSIS
{¶15} While neither party has raised the issue of whether the trial court’s entry is
a final appeal order, this court must address, sua sponte, whether there is a final
appealable order ripe for review. State ex rel. White v. Cuyahoga Metro. Hous. Aut., 79
Ohio St. 3d 543, 544, 684 N.E.2d 72 (1997). If an order is not final and appealable, an
appellate court has no jurisdiction to review the matter and it must be dismissed. Because
the Appellant’s petition was dismissed without a hearing and because the trial court did
not include findings of fact and conclusions of law, we are compelled to dismiss this
appeal for lack of a final appealable order.
{¶16} Petitions for post-conviction relief are governed by R.C. 2953.21.
Specifically, the statute provides that when a trial court denies a petition for post-
conviction relief without a hearing, it is required to issue findings of fact and conclusions
of law. R.C. 2953.21(H). The requirement that a trial court make findings of fact and
Coshocton County, Case No. 2018CA0002 5
conclusions of law is essential in order to prosecute an appeal. State v. Mapson, 1 Ohio
St.3d 217, 219, 438 N.E.2d 910 (1982). While a trial court is not required to make findings
when dismissing a successive petition for relief (See State ex rel. Jennings v. Nurre, 72
Ohio St. 3d 596, 1995–Ohio–280, 651 N.E.2d 1006) or when dismissing a petition as
untimely (See State ex rel. Kimbrough v. Greene, 98 Ohio St. 3d 116, 2002–Ohio–7042,
781 N.E.2d 155), in the instant case the petition was Appellant's first petition and was
timely filed.
{¶17} The court's judgment entry dismissing the petition states:
This matter is before the court upon the “defendant’s motion to
vacate the void sentences that offend the U.S. Constitution”, filed March 8,
2018.
The motion has been opposed by the State of Ohio.
Whereupon, the court finds the defendant’s motion to be not well
taken and said motion is denied.”
{¶18} The judgment is insufficient to fulfill the requirement of R.C. 2953.21(H) that
the court issue findings of fact and conclusions of law when denying a petition for post-
conviction relief without a hearing. We held in State v. Poulton, 5th Dist. Muskingum No.
CT2015-0041, 2016-Ohio-901, ¶ 17 that a judgment entry dismissing a post-conviction
petition without findings of fact and conclusions of law is not a final, appealable order.
State v. Evans, 9th Dist. 10CA0020, 2012–Ohio–1120, citing State v. Beard, 9th Dist. No.
07CA009240, 2008–Ohio 3722. We reach the same conclusion in this case.
Coshocton County, Case No. 2018CA0002 6
{¶19} This appeal is dismissed for lack of a final appealable order.
By: Baldwin, J.
Wise, John, P.J. and
Gwin, J. concur.