State v. Kaiser

2010 Ohio 4616

• Court: Ohio Court of Appeals
• Decided: September 23, 2010
• Docket: 10CA1
• Status: Published

Opinion

[Cite as State v. Kaiser, 2010-Ohio-4616.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT LAWRENCE COUNTY

STATE OF OHIO, : : Plaintiff-Appellee, : Case No: 10CA1 : v. : : DECISION AND J. STEWART KAISER, : JUDGMENT ENTRY : Defendant-Appellant. : File-stamped date: 9-23-10

APPEARANCES:

Craig A. Allen, Ironton, Ohio, for Appellant.

Robert A. Cassity, Portsmouth, Ohio, for Appellee.

Kline, J.:

{¶1} J. Stewart Kaiser (hereinafter “Kaiser”) appeals the judgment of the Lawrence

County Court of Common Pleas, which sentenced Kaiser to probation pursuant to a

plea agreement. On appeal, Kaiser raises various arguments related to the terms of his

probation. However, we do not have jurisdiction to consider Kaiser’s arguments

because (1) his appeal is untimely and (2) Kaiser has not appealed from a final

appealable order. Accordingly, we dismiss this appeal for lack of jurisdiction.

I.

{¶2} On August 14, 2009, Kaiser and the Lawrence County Prosecutor reached

the following plea agreement: “Defendant, shall plead guilty to a Bill of Information,

charging him with three counts of Endangering Children, [R.C.] 2919.22(A). In return for Lawrence App. No. 10CA1 2

this plea the Defendant shall be sentenced to six months on each count concurrently.

The six month sentence shall be suspended. The Defendant shall be placed on

probation for a period of three years subject to the terms of the Court.

{¶3} “The Defendant shall have no contact with [the] minor child during the

probationary period except for contact in a public place or contact with the natural

parent.”

{¶4} Kaiser then pled guilty to three counts of endangering children, and the trial

court sentenced Kaiser pursuant to the plea agreement. The trial court entered its

judgment of conviction on September 17, 2009. The judgment of conviction states that

“[t]he term[] of incarceration as imposed against Defendant herein is hereby suspended,

and Defendant is Ordered to serve a term of probation for a period of three (3) years.

{¶5} “In addition to the regular terms and conditions of probation, Defendant is

Ordered to have no contact with the minor child involved herein during the term of

probation, except for contact in a public place and/or contact with the natural parent.”

{¶6} The judges of the Lawrence County Common Pleas Court have approved

twenty-eight (28) general terms of probation (hereinafter the “General Terms”).

Apparently, the General Terms apply to all probationers sentenced by the Lawrence

County Common Pleas Court, regardless of the probationers’ individual crimes. On

September 24, 2009, Kaiser visited the Lawrence County probation office to sign his

Conditions of Community Control Sanctions form (hereinafter the “Sanctions Form”).

The Sanctions Form lists the General Terms of probation, but Kaiser objected to the

terms related to alcohol consumption and firearms possession. Subsequently, Kaiser

signed a modified Sanctions Form that (1) eliminated the firearms restriction and (2) Lawrence App. No. 10CA1 3

changed the language relating to alcohol consumption. (Hereinafter, we will refer to this

particular form as the “Modified Sanctions Form.”) An administrative assistant in the

probation department witnessed Kaiser’s signature on the Modified Sanctions Form.

{¶7} Kaiser apparently believed that the terms in the Modified Sanctions Form

would apply to him. But on October 1, 2009, the probation department informed Kaiser

that he would be subjected to all of the General Terms, including the terms related to

alcohol consumption and firearms possession. Kaiser then refused to sign an unaltered

Sanctions Form; that is, he would not sign a Sanctions Form listing all of the General

Terms. Subsequently, on October 7, 2009, Kaiser filed a motion asking the trial court to

adopt the terms in the Modified Sanctions Form.

{¶8} The trial court set a hearing date of December 11, 2009 for Kaiser’s motion.

But on December 11, 2009, just before the scheduled hearing, Kaiser filed the following

motion: “Now comes the defendant and moves this court to set the conditions of

probation in accord with the law of Ohio[] and allow the defendant to serve his probation

on unsupervised probation. The [October 7, 2009] motion previously filed is moot.” As

a result, the trial court considered Kaiser’s second motion at the December 11, 2009

hearing.

{¶9} In a December 15, 2009 decision, the trial court denied Kaiser’s “motion to

adopt new conditions” of probation. The trial court found that “the standard conditions

of probation previously adopted by the Lawrence County Court of Common Pleas are

applicable to the defendant in this case. The defendant must agree to those conditions

to comply with the requirements of his period of probation. The motion to adopt new

conditions is overruled.” December 15, 2009 Decision at 3. Lawrence App. No. 10CA1 4

{¶10} Kaiser filed his notice of appeal on January 12, 2010. He appeals from the

trial court’s December 15, 2009 decision and asserts the following four assignments of

error: I. “Appellant contends that one set of conditions of probation for all felonies and

misdemeanors is unlawful.” II. “Appellant contends some of the rules of probation of the

Department of Corrections of Lawrence County, Ohio are unconstitutional and

unlawful.” III. “Appellant contends that it is unlawful to allow the Department of

Corrections to propound the rules of probation.” And, IV. “Appellant contends that

probation began when the judgment entry was recorded and not when the defendant

signed the second set of probation rules.”

II.

{¶11} Before we may consider the merits of Kaiser’s arguments, we must first

address two jurisdictional issues. Those are, (1) whether Kaiser’s appeal is timely

and/or (2) whether Kaiser appealed from a final appealable order.

A.

{¶12} “The time for filing a notice of appeal is governed by App.R. 4 and, pursuant

to App.R. 14(B), a court may not enlarge the time for filing a notice of appeal.” State v.

Thacker, Lawrence App. No. 02CA35, 2002-Ohio-7443, at ¶3, citing Ross v. Harden

(1982), 8 Ohio App.3d 34. “If a party fails to file a notice of appeal within thirty days as

required by App.R. 4(A), we do not have jurisdiction to entertain the appeal. The timely

filing of a notice of appeal under this rule is a jurisdictional prerequisite to our review.”

Hughes v. A & A Auto Sales, Inc., Lawrence App. No. 08CA35, 2009-Ohio-2278, at ¶7.

See, also, State v. Cremeens, Vinton App. No. 06CA646, 2006-Ohio-7092, at ¶6; Lawrence App. No. 10CA1 5

Thacker at ¶3; State v. Sides, Lake App. No. 2008-L-145, 2008-Ohio-6058, at ¶6; State

v. Sturkey, Muskingum App. No. CT2006-0087, 2007-Ohio-5701, at ¶21.

{¶13} “Journalization of the judgment of conviction pursuant to Crim.R. 32(C) starts

the 30-day appellate clock ticking.” State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-

3330, at ¶10 (citations omitted). In the proceedings below, the trial court entered

Kaiser’s judgment of conviction on September 17, 2009. Furthermore, Kaiser’s

judgment of conviction is final and appealable because it sets forth (1) Kaiser’s guilty

plea; (2) Kaiser’s sentence; (3) the judge’s signature; and (4) entry on the journal by the

Lawrence County clerk of court. See id. at syllabus (explaining Crim.R. 32(C)).

Therefore, Kaiser’s appellate clock started ticking on September 17, 2009.

{¶14} Because Kaiser filed his notice of appeal on January 12, 2010, we find that

this appeal is untimely. The Fifth Appellate District reached a similar conclusion in State

v. Meldrum (Apr. 15, 2002), Stark App. No. 2001CA00289. In Meldrum, the defendant

was convicted of two misdemeanors on January 26, 2001. The trial court’s judgment of

conviction included the following conditions of probation: “Defendant shall not enter any

school district properties/school yards, athletic or sports fields in any 7 seven school

districts covered by this Court’s jurisdiction for 5 yrs.” Id. On August 9, 2001, the

defendant in Meldrum filed a motion to modify the conditions of probation, which the trial

court denied.

{¶15} On appeal, the Fifth Appellate District found that it lacked jurisdiction to

consider the Meldrum defendant’s arguments. The court stated that “‘[t]he appropriate

time to challenge the conditions of probation is immediately after they are imposed. An

order suspending the imposition of the sentence and placing the defendant on probation Lawrence App. No. 10CA1 6

is a final order. R.C. 2951.10; State v. Fair (June 13, 1990), Summit App. No. 14343,

unreported, at 4. Because such an order is final and, therefore, appealable, it must be

appealed within thirty days of its entry. App.R. 4(A). Inasmuch as defendant failed to

timely appeal from the imposition of probation, this court lacks jurisdiction to now

consider this issue.’ * * * Therefore, as the trial court’s August 23, 2001 judgment entry

denying the motion to modify sentence made no changes to the pre-existing probation

conditions, we find that the present argument is merely an untimely attempt to challenge

prior orders of the trial court.” Meldrum, quoting State v. Frambach (Mar. 17, 1993),

Lorain App. No. 92CA005395. See, also, State v. Mason, Franklin App. No. 01AP-847,

2002-Ohio-2803, at ¶19 (“Defendant’s failure to challenge the condition of probation via

an appeal of the [judgment of conviction] prevents consideration of the matter in the

present appeal.”); cf. State v. Young, Montgomery App. No. 20813, 2005-Ohio-5584, at

¶6 (“If a defendant’s rights were ever violated by [a] sentence, the violation occurs at the

time of sentencing, not at the time a motion to modify the sentence is denied.”).

{¶16} In the present case, Kaiser is attempting to challenge the General Terms of

probation. The judges of the Lawrence County Common Pleas Court approved the

General Terms, and the General Terms apply to all probationers sentenced by that

court. Here, Kaiser’s judgment of conviction states that he is subject to “the regular

terms and conditions of probation.” Therefore, Kaiser became subject to the General

Terms when the trial court entered its judgment of conviction. The trial court’s

December 15, 2009 decision made no changes to Kaiser’s probation, and “the filing of a

motion to modify a sentence does not extend the time for filing a direct appeal[.]” State

v. Chadwick (Feb. 1, 1994), Franklin App. Nos. 93APA08-1207 & 93APA09-1243; see, Lawrence App. No. 10CA1 7

also, State v. Reigelsperger (Mar. 29, 1996), Clark App. No. 95-CA-90. Thus, on

appeal, Kaiser is actually challenging the September 17, 2009 judgment of conviction.

We agree with the reasoning in Meldrum and find that Kaiser’s appeal is untimely.

{¶17} Finally, we note that Kaiser filed his first motion on October 7, 2009, which

was well within the time limit for an appeal. See App.R. 4(A). Therefore, Kaiser cannot

argue that he learned of the conditions of his probation only after the time for an appeal

had passed.

{¶18} Accordingly, for the foregoing reasons, we find that Kaiser’s appeal is

untimely.

B.

{¶19} We also find that the trial court’s December 15, 2009 decision is not a final

appealable order because the decision does not affect Kaiser’s substantial rights.

Under Ohio law, appellate courts have jurisdiction to review the final orders or

judgments of the inferior courts in their district. See Section 3(B)(2), Article IV, Ohio

Constitution; R.C. 2505.03(A); R.C. 2953.02. If an order is not final and appealable,

then an appellate court has no jurisdiction to review the matter and must dismiss the

appeal. See Gen. Acc. Ins. Co. v. Ins. Co. of N. Am. (1989), 44 Ohio St.3d 17, 20;

State v. Taylor, Highland App. No. 09CA23, 2010-Ohio-1606, at ¶5; State v. Lupardus,

Washington App. No. 07CA46, 2008-Ohio-2660, at ¶4. In the event that the parties to

the appeal do not raise this jurisdictional issue, the reviewing court must raise it sua

sponte. See In re Murray (1990), 52 Ohio St.3d 155, 159, fn. 2; Chef Italiano Corp. v.

Kent State Univ. (1989), 44 Ohio St.3d 86, 87; Whitaker-Merrell v. Geupel Constr. Co.

(1972), 29 Ohio St.2d 184, 186; Taylor at ¶5; Lupardus at ¶4. “As in civil proceedings, a Lawrence App. No. 10CA1 8

criminal case requires a final judgment or order before there is a basis for appeal.”

State v. Lemaster, Pickaway App. No. 02CA20, 2003-Ohio-4557, at ¶14.

{¶20} In Lemaster, we found that an order denying the defendant’s motion to

“correct and/or modify sentence” was not a final appealable order. The trial court in

Lemaster entered a judgment of conviction on March 18, 1996, but the defendant did

not file his motion to correct and/or modify sentence until July 1, 2002. After the trial

court denied the Lemaster defendant’s motion, this court found that we did not have

jurisdiction to review the defendant’s appeal. Initially, we noted that “[a] final appealable

order includes an order which amounts to a disposition of the cause and which affects a

substantial right in an action which in effect determines the action and prevents a

judgment.” Id. (internal quotation omitted). Then, after reviewing similar cases, we

stated the following: “[The defendant] is asking us to review his sentence by reviewing

the trial court’s denial of his motion. However, the trial court’s denial of this motion did

not affect [the defendant’s] substantial rights and determine the action. If [the

defendant’s] substantial rights were in fact ever violated, the violation occurred at the

trial court’s order of conviction and sentencing. He should have raised all arguments

concerning his sentence on his direct appeal to this Court from the trial court’s

imposition of sentence on March 18, 1996. He failed to do so.” Id. at ¶25. As a result,

we dismissed the appeal for lack of a final appealable order.

{¶21} In similar situations, other courts have found that the appealed-from orders

were not final and appealable. See, e.g., State v. Senk, Cuyahoga App. No. 88524,

2007-Ohio-3414, at ¶18 (“[I]t is evident that [the defendant] is attempting to attack his

sentence collaterally by appealing the trial court’s denial of his motion to correct Lawrence App. No. 10CA1 9

sentence. We conclude that the judgment of the trial court, which [the defendant] is

appealing, is not a final appealable order.”); State v. Vanelli, Wayne App. No.

02CA0066, 2003-Ohio-2717, at ¶9 (“The November 15, 2001 judgment entry was final

and appealable, yet Appellant failed to timely appeal from that order. Appellant has filed

a notice of appeal from a judgment on a motion to reconsider. Such a judgment is a

nullity and is not a final, appealable order.”); State v. Tully, Stark App. No. 2001 CA

00313, 2002-Ohio-1290 (finding that appellant’s substantial rights were not affected

because “[n]othing changed by virtue of the [trial court’s] order”); State v. Arnett (Feb.

22, 1996), Shelby App. No. 17-95-25 (finding that the trial court’s denial of a motion to

modify sentence was not a final appealable order); State v. Shinkle (1986), 27 Ohio

App.3d 54, at 55 (“For purposes of appeal in a criminal case, a final judgment or order

amounting to a disposition of the cause usually means the imposition of a sentence.”).

{¶22} Here, the trial court’s December 15, 2009 decision did not affect Kaiser’s

substantial rights. “A defendant does not have a substantial right to a modification of a

previously imposed sentence.” Young, 2005-Ohio-5584, at ¶6. Furthermore, nothing

changed as a result of the December 15, 2009 decision. Prior to the decision, the

General Terms applied to Kaiser. And after the decision, the General Terms continued

to apply to Kaiser. See Tully. If Kaiser’s substantial rights were ever violated, the

violation occurred as a result of the September 17, 2009 judgment of conviction. “Were

we to find a final appealable order in this instance, and entertain [Kaiser’s] assignments

of error, we would open our doors to piecemeal litigation, where defendants

continuously file post-conviction motions that raise separate arguments concerning

different aspects of their sentence[s]. * * * This type of piecemeal litigation ‘effectively Lawrence App. No. 10CA1 10

stymie[s] and impede[s] the execution and enforcement of criminal sentences and

judgments.’” Lemaster at ¶26, quoting Shinkle at 56.

{¶23} Accordingly, for the foregoing reasons, we find that the December 15, 2009

decision is not a final appealable order.

C.

{¶24} Finally, Kaiser’s appeal may be timely, and the trial court’s December 15,

2009 decision may be final and appealable, if we were to interpret the present case as a

petition for postconviction relief. However, we cannot interpret this case in such a

manner. “Where a criminal defendant, subsequent to his or her direct appeal, files a

motion seeking vacation or correction of his or her sentence on the basis that his or her

constitutional rights have been violated, such a motion is a petition for postconviction

relief as defined in R.C. 2953.21.” State v. Reynolds, 79 Ohio St.3d 158, syllabus,

1997-Ohio-304. Here, Kaiser did not file a direct appeal of the September 17, 2009

judgment of conviction. Therefore, the Reynolds syllabus does not apply because

Kaiser did not file any motions subsequent to a direct appeal.

{¶25} Some courts have extended Reynolds in certain instances, holding that

“[w]hen a criminal defendant files a motion to vacate or modify a sentence * * *

subsequent to the expiration of the time for his direct appeal * * * the motion is, in

actuality, a petition for postconviction relief.” State v. Young, Erie App. No. E-08-041,

2009-Ohio-1118, at ¶16 (emphasis added). See, also, State v. Cataraso, Ross App.

No. 01CA2636, 2002-Ohio-3211, at ¶14; State v. Reynolds, Franklin App. No. 06AP-

1006, 2007-Ohio-2189, at ¶6; State v. Cale (Mar. 23, 2001), Lake App. No. 2000-L-034;

State v. Harrison (July 17, 2000), Warren App. No. CA99-07-077. Lawrence App. No. 10CA1 11

{¶26} Here, we believe it would be inappropriate to apply an extended version of

Reynolds to the present case. Kaiser filed his first motion within the thirty-day time limit

in App.R. 4(A). We recognize that Kaiser filed his second motion on December 11,

2009, which was subsequent to the expiration of time for a direct appeal. However, we

interpret the December 11, 2009 motion as a mere supplement to, or continuation of,

the October 7, 2009 motion. The trial court had scheduled a hearing date for the

October 7, 2009 motion, and Kaiser filed his second motion just before that hearing was

to commence. At the hearing, the trial court judge “opened the file and * * * was sort of

caught unaware” by the December 11, 2009 motion. Transcript at 2. And the

prosecutor was “just handed [the December 11, 2009] motion” upon entering the

courtroom. Id. at 3. As such, Kaiser did not obtain a hearing based on the December

11, 2009 motion. Instead, he merely changed his argument just prior to the previously

scheduled hearing. Because the trial court’s actions were essentially a result of the

October 7, 2009 motion, which Kaiser filed before the expiration of time for a direct

appeal, we choose not to apply an extended version of Reynolds.

D.

{¶27} In conclusion, we find (1) that Kaiser’s appeal is untimely and (2) that the

December 15, 2009 decision is not a final appealable order. Accordingly, we dismiss

this appeal for lack of jurisdiction. However, we note that Kaiser may have an avenue

of appeal from the judgment of conviction pursuant to App.R. 5(A). See Thacker at ¶4.

APPEAL DISMISSED. Lawrence App. No. 10CA1 12

JUDGMENT ENTRY

It is ordered that the APPEAL BE DISMISSED. Appellant shall pay 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 Lawrence County 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. Exceptions.

Abele, J.: Concurs in Judgment and Opinion. McFarland, P.J.: Concurs in Judgment Only.

For the Court

BY:_____________________________ Roger L. Kline, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.