State v. Garver

2024 Ohio 6111

• Court: Ohio Court of Appeals
• Decided: December 31, 2024
• Docket: 2024-P-0011
• Status: Published

Opinion

[Cite as State v. Garver, 2024-Ohio-6111.]

IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY

STATE OF OHIO, CASE NO. 2024-P-0011

Plaintiff-Appellee, Criminal Appeal from the - vs - Court of Common Pleas

CHARLOTTE G. GARVER, Trial Court No. 2023 CR 00208 Defendant-Appellant.

MEMORANDUM OPINION

Decided: December 31, 2024 Judgment: Appeal dismissed

Victor V. Vigluicci, Portage County Prosecutor, and Theresa M. Scahill, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).

John P. Laczko, Portage County Public Defender, and Alonda Ann Bush, Portage County Assistant Public Defender, 209 South Chestnut Street, Suite 400, Ravenna, OH 44266 (For Defendant-Appellant).

ROBERT J. PATTON, J.

{¶1} Appellant, Charlotte G. Garver (“Garver”), appeals the decision of the

Portage County Court of Common Pleas, revoking her community control and imposing

a previously suspended sentence of 11 months in prison. For the following reasons, we

dismiss.

{¶2} On February 21, 2024, appellant, through counsel, filed a notice of appeal

from the sentencing order of the Portage County Common Pleas Court in Case No. 2023

CR 0208. {¶3} Upon review of the judgment entry, there does not appear to be a final

appealable order.

{¶4} Appellant was convicted and sentenced to community control for

Aggravated Possession of Drugs, a fifth-degree felony, and Having Physical Control of

Vehicle While Under the Influence, a first-degree misdemeanor, in an entry dated August

31, 2023. The order states, “IT IS THEREFORE ORDERED Defendant is placed on the

general control of the Portage County Adult Probation Department in the Intensive

Supervision Program for a period of 12 months and 12 additional months under the

General Division of Adult Probation, or until the Court has been notified by Portage County

Adult Probation Department that the Defendant has satisfied all conditions of said

community control.”1

{¶5} Appellant later was found to have violated the conditions of community

control. A revocation hearing was held on January 22, 2024, on the Portage County

Probation Department’s request to revoke. Appellant was sentenced in an entry filed

January 23, 2024. The entry states that appellant shall serve 11 months “for the offense

of ‘Aggravated Possession of Drugs,’ or until legally released.” The entry does not indicate

any sentence regarding the misdemeanor conviction.

{¶6} The transcript from the January 22, 2024, hearing also sheds no light on the

issue. In the transcript, the court states, “I’m going to terminate her probation, impose the

previously suspended sentence of - - I’ll make it eleven months instead of 12.” The

transcript and the order are silent as to the misdemeanor offense.

1. The August 31, 2023, sentencing entry fails to indicate what portion of community control is to be served on the felony conviction versus the misdemeanor conviction. 2

Case No. 2024-P-0011 {¶7} “[A] judgment of conviction is a final appealable order under R.C. 2505.02

when it sets forth (1) the guilty plea, the jury verdict, or the finding of the court upon which

the conviction is based; (2) the sentence; (3) the signature of the judge; and (4) entry on

the journal by the clerk of the court.” State v. Baker, 2008-Ohio-3330, ¶ 18.

{¶8} Further, this Court has stated: “[T]he law is clear that when only a single

sentence is imposed after finding an appellant guilty of two different crimes, one of the

offenses is left without a sentence, and this court is unable to determine to which offense

the sentence applies . . . there is no final appealable order.” State v. Kelly, 2021-Ohio-

474, ¶ 4 (11th Dist.), quoting State v. Garner, 2003-Ohio-5222, ¶ 10 (11th Dist.). See also

State v. Washington, 2021-Ohio-3883.

{¶9} Here, despite specifically referencing the misdemeanor conviction, the

judgment entry does not specify a sentence for the revocation of community control on

the misdemeanor conviction. As written, this Court cannot identify a sentence attributed

to the misdemeanor conviction. Therefore, it is not a final and appealable order.

{¶10} If a lower court’s order is not final, then an appellate court does not have

jurisdiction to review the matter and the case must be dismissed. Gen. Acc. Ins. Co. v.

Ins. Co. of N. Am., 44 Ohio St.3d 17, 20 (1989).

{¶11} Since we lack jurisdiction to address this appeal, it is within the trial court’s

sole authority to resentence appellant so as to render the trial court’s action reviewable

on appeal.

Case No. 2024-P-0011 {¶12} Accordingly, because this Court does not have jurisdiction to proceed, this

case is dismissed.

MATT LYNCH, J.,

JOHN J. EKLUND, J.,

concur.

Case No. 2024-P-0011