State v. Kelly

2021 Ohio 474

Opinion

[Cite as State v. Kelly, 2021-Ohio-474.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

PORTAGE COUNTY, OHIO

STATE OF OHIO, : MEMORANDUM OPINION

Plaintiff-Appellee, : CASE NO. 2020-P-0077 - vs - :

BRYAN P. KELLY, :

Defendant-Appellant. :

Criminal Appeal from the Portage County Municipal Court, Ravenna Division, Case No. 2019 CRB 02670 R.

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).

Olivia A. Myers, O. Myers Law LLC, 333 South Main Street, Suite 401, Akron, OH 44313 (For Defendant-Appellant).

MATT LYNCH, J.

{¶1} Appellant, Bryan P. Kelly, appeals from an August 28, 2020 entry of the

Portage County Municipal Court, Ravenna Division. After finding appellant guilty of

assault, a first-degree misdemeanor, and public indecency, a fourth-degree

misdemeanor, the trial court imposed a $200 fine and court costs; 180 days in jail with

179 days suspended; and 12 months of supervised probation. {¶2} Appellee, the state of Ohio, filed a motion to dismiss the appeal for lack of

jurisdiction indicating that the sentencing entry is not a final appealable order.

Specifically, appellee contends that the appeal should be dismissed because the entry

does not contain a separate sentence for each offense; rather, it just contains a “blanket

sentence” for both convictions. State v. Clay, 11th Dist. Trumbull No. 2009-T-0126,

2010-Ohio-4558, ¶ 11; and State v. Garner, 11th Dist. Trumbull No. 2002-T-0025, 2003-

Ohio-5222, ¶ 7.

{¶3} Appellant filed a memorandum in opposition to the motion to dismiss

indicating that the entry “may have textual irregularities” but that this court is not

divested of jurisdiction and can decide on the merits to remand for the trial court to

resentence appellant.

{¶4} In reviewing Clay and Garner, supra, the 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. Thus, there is no final appealable order. Garner at ¶ 10.

{¶5} It is hereby ordered that appellee’s motion to dismiss is granted.

{¶6} Appeal dismissed.

MARY JANE TRAPP, P.J.,

CYNTHIA WESTCOTT RICE, J.,

concur.