State v. Allen

2012 Ohio 5141

Opinion

[Cite as State v. Allen, 2012-Ohio-5141.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO

Plaintiff-Appellee

-vs-

JOHN DALE ALLEN

Defendant-Appellant

JUDGES: Hon. Patricia A. Delaney, P.J. Hon. William B. Hoffman, J. Hon. Sheila G. Farmer, J.

Case No. CT2012-0034

OPINION

NUNC PRO TUNC

CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court of Common Pleas, Case No. CR2011-0109

JUDGMENT: Dismissed

DATE OF JUDGMENT ENTRY: October 31, 2012

APPEARANCES:

For Appellee For Appellant

ROBERT L. SMITH JOHN DALE ALLEN, PRO SE Assistant Prosecuting Attorney #A614204 27 North Fifth Street C/o HCF – P.O. Box 59 Zanesville, OH 43701 Nelsonville, OH 45764 Hoffman, J.

{¶1} Defendant-appellant John D. Allen appeals the May 18, 2012 Entry

entered by the Muskingum County Court of Common Pleas, which denied his motion for

judicial release. Plaintiff-appellee is the State of Ohio.

STATEMENT OF THE CASE1

{¶2} On May 4, 2011, the Muskingum County Grand Jury indicted Appellant on

two counts of having weapons while under disability, in violation of R.C. 2923.12(A)(2)

and (3), felonies of the third degree; and one count of obstruction of official business, in

violation of R.C. 2921.31(A), a felony of the fifth degree. Appellant appeared before the

trial court for arraignment on May 11, 2011, and entered a plea of not guilty to the

Indictment.

{¶3} Prior to the start of trial on October 6, 2011, the State dismissed Count I of

the Indictment, having weapons while under disability, in violation of R.C. 2923.12(A)(2).

The matter proceeded to jury trial on the remaining counts. After hearing all the

evidence and deliberating, the jury found Appellant guilty of both charges. The trial

court deferred sentencing until a pre-sentence investigation was completed. On

October 17, 2011, the trial court sentenced Appellant to an aggregate prison term of

four years.

{¶4} Appellant filed a Notice of Appeal from his conviction and sentence. This

Court dismissed that appeal on November 21, 2011, at Appellant’s request. Appellant

1 A Statement of the Facts underlying Appellant’s conviction and sentence is not necessary to our disposition of this Appeal; therefore, such shall not be included herein. filed a Motion for Judicial Release on November 29, 2011. The trial court denied the

motion, finding Appellant had not served the requisite 180 days. Appellant filed a

second Motion for Judicial Release on March 13, 2012. The trial court denied the

motion, finding Appellant still was not eligible. Appellant filed a third Motion for Judicial

Release on April 16, 2012. After considering the record in the instant matter, Appellant’s

history and background, the principles and purposes of sentencing pursuant to R.C.

2929.11 as well as the seriousness and recidivism factors set forth in R.C. 2929.12, the

trial court denied Appellant’s third motion. On May 10, 2012, Appellant filed a Motion for

“Judicial” Release to Help Pay on the United States Bankruptcy. Via Entry filed May 18,

2012, the trial court denied Appellant’s motion.

{¶5} It is from this Entry Appellant appeals, raising as error:

{¶6} “I. BY NOT GRANTING MR. ALLEN’S RELEASE, THE LOWER COURT

HAS FAILED TO SUPPORT AND UPHOLD THE UNITED STATES BANKRUPTCY.

{¶7} “II. HOUSE BILL 86 (H.B. 86) CREATES THE EXPECTATION OF

JUDICIAL RELEASE FOR QUALIFIED INCARCERATED OFFENDERS.

{¶8} “MR. ALLEN IS UNNECESSARILY BEING DEPRIVED OF HIS RIGHT

TO LIBERTY AND THE PURSUIT OF HAPPINESS.”

{¶9} This Court is required to raise jurisdictional issues involving final

appealable orders sua sponte. In re Murray (1990), 52 Ohio St.3d 155, 159, fn. 2, 556

N.E.2d 1169; Whitaker-Merrell v. Geupel Co. (1972), 29 Ohio St.2d 184, 186, 280

N.E.2d 922. The Ohio Supreme Court in State v. Coffman (2001), 91 Ohio St.3d 125,

742 N.E.2d 644, held the denial of a motion for shock probation is never a final

appealable order. With the adoption of Senate Bill 2 and Senate Bill 269, judicial release replaced shock probation, effective July 1, 1996. Accordingly, the denial of a motion for

judicial release where no hearing was held is not a final appealable order. State v.

Woods (2001), 141 Ohio App.3d 549, 752 N.E.2d 309.

{¶10} Because the Entry from which Appellant takes this Appeal is not a final

appealable order, we lack jurisdiction to address this issue.

{¶11} Appellant’s appeal is dismissed.

By: Hoffman, J.

Delaney, P.J. and

Farmer, J. concur s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN

s/ Patricia A. Delaney _________________ HON. PATRICIA A. DELANEY

s/ Sheila G. Farmer __________________ HON. SHEILA G. FARMER IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : JOHN DALE ALLEN : : Defendant-Appellant : Case No. CT2012-0034

For the reason stated in our accompanying Opinion, this appeal is dismissed.

Costs to Appellant. s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN

s/ Patricia A. Delaney _________________ HON. PATRICIA A. DELANEY

s/ Sheila G. Farmer __________________ HON. SHEILA G. FARMER