State v. Hostacky

2015 Ohio 419

• Court: Ohio Court of Appeals
• Decided: February 5, 2015
• Docket: 101282
• Status: Published

Opinion

[Cite as State v. Hostacky, 2015-Ohio-419.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 101282

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

DENNIS J. HOSTACKY

DEFENDANT-APPELLANT

JUDGMENT: DISMISSED

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-12-567826-A

BEFORE: Keough, J., Jones, P.J., and E.T. Gallagher, J.

RELEASED AND JOURNALIZED: February 5, 2015 ATTORNEYS FOR APPELLANT

Robert L. Tobik Cuyahoga County Public Defender By: Jeffrey Gamso Assistant Public Defender 310 Lakeside Avenue, Suite 200 Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor By: Mary McGrath Assistant Prosecuting Attorney The Justice Center, 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 KATHLEEN ANN KEOUGH, J.:

{¶1} Defendant-appellant, Dennis J. Hostacky, appeals the trial court’s decision denying

his petition for postconviction relief. For the reasons that follow, we dismiss the appeal for lack

of a final, appealable order.

{¶2} In May 2013 and following a bifurcated jury and bench trial, Hostacky was

convicted of kidnapping, aggravated robbery, theft, carrying concealed weapons, having weapons

while under disability, and one- and three-year firearm specifications. A total prison term of

eight years was imposed.

{¶3} Hostacky filed a direct appeal with this court raising four assignments of error,

including one for ineffective assistance of counsel. State v. Hostacky, 8th Dist. Cuyahoga No.

100003, 2014-Ohio-2975

{¶4} While his direct appeal was pending, Hostacky filed a timely petition for

postconviction relief contending that his trial counsel was ineffective for failing to (1) conduct a

reasonable and timely investigation, (2) call a necessary and available witness of whom he was

aware and who was available and willing to testify, and (3) repeatedly and consistently failing to

object to highly improper and prejudicial testimony and argument. Attached to his petition were

affidavits by his ex-wife, Christy Hostacky, and his aunt, Sandra Hostacky.

{¶5} The trial court summarily dismissed Hostacky’s petition without conducting a

hearing or issuing findings of fact and conclusions of law.

{¶6} Thereafter, this court affirmed Hostacky’s convictions and sentence in part, reversed

in part, and remanded the case to the trial court for the limited purpose of merging the two

weapons while under disability counts for sentencing. Hostacky at ¶ 1. {¶7} Hostacky appeals from the trial court’s decision summarily denying his petition for

postconviction relief, asserting the following assignment of error:

The trial court committed error when it denied the petition for post conviction

relief without holding a hearing as the petition was based on evidence dehors the

record, which if believed, was sufficient to demonstrate that trial counsel’s

performance was objectively deficient, that the deficiencies undermined the

confidence in the verdict, and that but for the deficient performance there is a

reasonable probability that there would have been a different outcome at trial, that

Mr. Hostacky was accordingly denied his constitutionally protected right to the

effective assistance of counsel, and that his conviction was therefore void or

voidable.

{¶8} The sole issue raised and identified by Hostacky is whether the trial court erred in

failing to conduct a hearing on his petition. However, because the trial court did not issue

findings of fact and conclusions of law, we dismiss the appeal because the trial court’s journal

entry does not constitute a final, appealable order.

{¶9} R.C. 2953.21(C) clearly provides that if the court dismisses or denies a timely

petition for postconviction relief, the trial court shall issue findings of fact and conclusions of

law. In State v. Mapson, 1 Ohio St.3d 217, 219, 438 N.E.2d 910 (1982), the Ohio Supreme

Court held that because of the mandates of R.C. 2953.21, “a judgment entry filed without such

findings is incomplete and it thus does not commence the running of the time period for filing an

appeal therefrom.” The court stated:

* * * The obvious reasons for requiring findings are “* * * to apprise

petitioner of the grounds for the judgment of the trial court and to enable the appellate courts to properly determine appeals in such a cause.” Jones v. State

(1966), 8 Ohio St.2d 21, 22 [37 O.O. 2d 357]. The exercise of findings and

conclusions are essential in order to prosecute an appeal. Without them, a

petitioner knows no more than [that] he lost and hence is effectively precluded

from making a reasoned appeal. In addition, the failure of a trial judge to make

the requisite findings prevents any meaningful judicial review, for it is the

findings and the conclusions which an appellate court reviews for error.

Id. at 219. The court recognized that the findings are “a necessary and essential part of a

judgment denying postconviction relief.” Id.

A holding to the contrary would not only defeat the purposes of R.C. 2953.21, it would also serve to increase the workload of the already over-burdened and overcrowded courts of appeal and further tax the already scarce state resources. Requiring a petitioner to perfect an appeal without having findings before him would deter judicial economy, for it would guarantee two trips to the appellate court — one to force the findings and another to review the decision on the merits.

Id. See also State ex rel. Ferrell v. Clark, 13 Ohio St.3d 3, 469 N.E.2d 843 (1984)

{¶10} Relying on Mapson, this court has previously held that a judgment entry denying or

dismissing a timely petition for postconviction relief that does not contain findings of fact or

conclusions of law is not a final, appealable order. See State v. Spencer, 8th Dist. Cuyahoga No.

81035, 2003-Ohio-287, State v. Loper, 8th Dist. Cuyahoga Nos. 81297, 81400, 81878,

2003-Ohio-3213, In re W.H., 8th Dist. Cuyahoga No. 94160, 2010-Ohio-2898.

{¶11} In this case, Hostacky’s petition was timely filed. The trial court summarily

denied the petition without preparing findings of fact or conclusions of law as required pursuant

to R.C. 2953.21(C). Accordingly, the trial court’s journal entry is not a final, appealable order,

and we lack jurisdiction to consider the appeal. {¶12} Dismissed.

It is ordered that the parties share equally in the costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the common pleas

court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.

KATHLEEN ANN KEOUGH, JUDGE

LARRY A. JONES, SR., P.J., and EILEEN T. GALLAGHER, J., CONCUR