State v. Galloway

2022 Ohio 1135

• Court: Ohio Court of Appeals
• Decided: April 4, 2022
• Docket: 7-21-07
• Status: Published

Opinion

[Cite as State v. Galloway, 2022-Ohio-1135.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT HENRY COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 7-21-07

v.

MARK S. GALLOWAY, JR., OPINION

DEFENDANT-APPELLANT.

Appeal from Henry County Common Pleas Court Trial Court No. 20 CR 0033

Appeal Dismissed

Date of Decision: April 4, 2022

APPEARANCES:

Autumn D. Adams for Appellant

Gwen Howe-Gebers for Appellee Case No. 7-21-07

ZIMMERMAN, P.J.

{¶1} Defendant-appellant, Mark S. Galloway, Jr. (“Galloway”), appeals

from the October 1, 2021 judgment entries of the Henry County Court of Common

Pleas, General Division, ordering him to pay restitution. For the reasons that follow,

we dismiss Galloway’s appeal.

{¶2} On June 24, 2020, the Henry County Grand Jury indicted Galloway on

one count of Felonious assault in violation of R.C. 2903.11(A)(1), a second-degree

felony. On June 29, 2020, Galloway entered a written plea of not guilty, and later

on July 23, 2020, Galloway appeared personally and entered his second plea of not

guilty.

{¶3} At Galloway’s final pretrial conference held on February 8, 2021, the

State requested the trial court amend the single count in the indictment from

Felonious assault to Aggravated trespass, in violation of R.C. 2911.211(A)(1), a

first-degree misdemeanor, pursuant to plea negotiations recited on the record in

open court. Then, Galloway withdrew his former not guilty pleas and entered a plea

of guilty under a negotiated-plea agreement that included a joint-sentencing

recommendation. Thereafter, the trial court immediately sentenced Galloway to

serve 180 days in the Corrections Center of Northwest Ohio, with 166 days

suspended on conditions. Next, the trial court ordered that Galloway be placed on

probation for one year, and ordered the State to submit the amount of restitution

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within 30 days, consistent with the parties joint-sentencing recommendation.1 The

judgment entry of sentencing was filed on February 9, 2021.

{¶4} On March 25, 2021, the State filed a motion for restitution, which the

defense opposed on August 9, 2021 on the basis that the State’s request was untimely

filed and was seeking restitution for a non-victim.2 On October 1, 2021, the trial

court granted the State’s motion in part by ordering Galloway to pay restitution in

the sum of $5,992.70.

{¶5} Galloway has appealed and raises three assignments of error.

Assignment of Error No. I

The Trial Court lacked subject matter jurisdiction over restitution.

{¶6} In his first assignment of error, Galloway argues that the trial court erred

by exercising its subject-matter jurisdiction ordering him to pay restitution.

Specifically, he asserts that the State filed its motion untimely (i.e., 14 days past the

parties agreed upon timeframe), and hence, the trial court had no authority to

entertain the State’s restitution motion.

1 Importantly, the amount of restitution was not part of the joint-sentencing recommendation and thus, no amount was stipulated by the parties. (See Feb. 8, 2021 Tr. at 2-3, 6, 12). 2 The State was requesting restitution in the amount of $1,638 payable to Advanced Care Emergency and $4,354.70 and $768.20 both payable to Wood County Hospital. (Doc. No. 36). The State conceded that the $768.20 amount was for a non-victim (Andrea Firman) and should not have been attributed to Galloway. (Doc. No. 43). It is undisputed that Galloway’s case involves a single victim–Justin Firman. (See Doc. Nos. 9, 31, 39, 43)

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Standard of Review

{¶7} Whether a trial court has subject-matter jurisdiction is a question of law

that we review de novo. See State v. Stewart, 3d Dist. Seneca No. 13-21-05, 2021-

Ohio-2294, ¶ 6. See also State v. Martinez, 3d Dist. Seneca Nos. 13-11-32 and 13-

11-21, 2012-Ohio-3750, ¶ 23 (“A trial court’s decision granting or denying a motion

to dismiss for lack of subject-matter jurisdiction is reviewed de novo.”). “De novo

review is independent, without deference to the lower court’s decision.” State v.

Hudson, 3d Dist. Marion No. 9-12-38, 2013-Ohio-647, ¶ 27, citing Ohio Bell Tel.

Co. v. Pub. Util. Comm. of Ohio, 64 Ohio St.3d 145, 147 (1992).

Analysis

{¶8} Before we can consider the merits of Galloway’s first assignment of

error pertaining to the subject-matter jurisdiction of the trial court, we must first

determine if we have subject-matter jurisdiction to consider his appeal. The Ohio

Constitution limits on our jurisdiction to the review of final judgments of a trial

court. See Ohio Constitution, Article IV, Section 3(B)(2); R.C. 2505.02. In the

absence of a final appealable order, we lack subject-matter appellate jurisdiction,

and thus, we must sua sponte dismiss an appeal. State v. Daniels, 1st Dist. Hamilton

No. C-140242, 2014-Ohio-5160, ¶ 5, citing Whitaker-Merrell Co. v. Geupel Constr.

Co., 29 Ohio St.2d 184, 186 (1971).

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{¶9} To constitute a final appealable order under R.C. 2505.02, a judgment

of conviction under Crim.R. 32(C) must include four essential elements: (1) the fact

of 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, paragraph one of the syllabus. The trial court’s October 1,

2021 restitution entry does not constitute a final appealable judgment of conviction

because it does not contain the fact of conviction or the entirety of Galloway’s

sentence.3

{¶10} We recognize that the trial court’s October 1, 2021 restitution entry

could be read in conjunction with its February 9, 2021 judgment entry to attempt to

satisfy the four elements set forth in Crim.R. 32(C), however, the Supreme Court of

Ohio has held that allowing multiple judgment entries to constitute a final

appealable order runs afoul of Crim.R. 32(C). See State v. Baker, 119 Ohio St.3d

197, 2008-Ohio-3330, ¶ 17, modified in part, Lester, at paragraph one of the

syllabus. Indeed, the rationale behind this holding is that only one judgment entry

can constitute a final appealable judgment of conviction. Id. Under the facts before

us, the October 1, 2021 restitution entry does not satisfy the requirement of Crim.R.

32(C).

3 Notwithstanding Galloway’s attachment of the February 9, 2021 judgment entry to his notice of appeal and because Galloway did not raise error in his appeal related to the February 9, 2021 judgment entry, we render no determination regarding whether that judgment entry constitutes a final appealable judgment of conviction. Compare State v. Johnson, 3d Dist. Logan No. 8-20-42, 2021-Ohio-1869, ¶ 12-14.

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{¶11} Hence, we are compelled to dismiss Galloway’s appeal for lack of

subject-matter jurisdiction. See Daniels at ¶ 7.

Assignment of Error No. II

The Trial Court erred when it denied Galloway’s Motion to Dismiss as the State sought restitution for a non-victim.

Assignment of Error No. III

The Trial Court abused its discretion in ordering restitution as it ordered an amount of restitution that was not sought and it failed to specify to whom the restitution was paid.

{¶12} In his second assignment of error, Galloway argues that the trial court

erred when it denied his motion to dismiss because the State’s motion sought an

order of restitution for a non-victim. In his third assignment of error, Galloway

asserts that the trial court abused its discretion by issuing a judgment entry that is

facially defective since the trial court ordered an amount that was different from the

State’s prayer for relief, and the trial court’s order did not specify the obligee.

{¶13} We have concerns with the State’s request for restitution for a non-

victim coupled with the lack of specificity regarding to whom the restitution would

be allocated. However, our determination that we lack subject-matter appellate

jurisdiction has rendered Galloway’s second and third assignments of error moot

prior to reaching a decision on these issues.

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{¶14} Notwithstanding our concerns, we dismiss Galloway’s appeal for lack

of appellate jurisdiction.

SHAW and WILLAMOWSKI, J.J., concur.

/jlr

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