State v. Ober

2021 Ohio 3709

• Court: Ohio Court of Appeals
• Decided: October 18, 2021
• Docket: 2021-P-0091
• Status: Published

Opinion

[Cite as State v. Ober, 2021-Ohio-3709.]

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

STATE OF OHIO, CASE NO. 2021-P-0091

Plaintiff-Appellee, Criminal Appeal from the -v- Municipal Court, Ravenna Division

JAMES S. OBER, Trial Court No. 2020 TRC 08592 R Defendant-Appellant.

MEMORANDUM OPINION

Decided: October 18, 2021 Judgment: Appeal dismissed

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

James S. Ober, pro se, 6150 Allyn Road, Hiram, OH 44234 (Defendant-Appellant).

CYNTHIA WESTCOTT RICE, J.

{¶1} On September 1, 2021, appellant, James S. Ober, pro se, filed a notice of

appeal from the trial court’s August 6, 2021 denial of his August 5, 2021 “Withdraw of

Statement.” In the August 5th pleading, appellant moved the trial court to “withdraw

statements made that were in the copy of the transcript where he may or may not have

stated that [he] absolutely and unequivocally did not want [his] attorney, Michael

Grueschow, to represent [him].” The docket reflects that appellant’s trial counsel was

granted permission to withdraw as counsel on July 26, 2021. {¶2} R.C. 2505.02 defines the types of orders that constitute a final appealable

order:

{¶3} “(1) An order that affects a substantial right in an action that in effect

determines the action and prevents a judgment;

{¶4} “(2) An order that affects a substantial right made in a special proceeding or

upon a summary application in an action after judgment;

{¶5} “(3) An order that vacates or sets aside a judgment or grants a new trial;

{¶6} “(4) An order that grants or denies a provisional remedy and to which both

of the following apply:

{¶7} “(a) The order in effect determines the action with respect to the provisional

remedy and prevents a judgment in the action in favor of the appealing party with respect

to the provisional remedy.

{¶8} “(b) The appealing party would not be afforded a meaningful or effective

remedy by an appeal following final judgment as to all proceedings, issues, claims, and

parties in the action.

{¶9} “(5) An order that determines that an action may or may not be maintained

as a class action; * * *.”

{¶10} In criminal cases, pursuant to R.C. 2953.02, a court of appeals only

possesses jurisdiction to hear an appeal if it is from a “judgment or final order.”

Furthermore, the Supreme Court of Ohio has stated that “in a criminal case there must

be a sentence which constitutes a judgment or a final order which amounts ‘to a

disposition of the cause’ before there is a basis for appeal.” State v. Chamberlain, 177

Ohio St. 104, 106-107(1964).

Case No. 2021-P-0091 {¶11} Here, the trial court merely denied appellant’s pro se pretrial motion to

withdraw his statements. There is no indication in the record that the charges against

appellant of OVI refusal to submit to chemical tests, driving in marked lanes, and the

seatbelt violation have been heard and that he has been convicted and sentenced on the

charges.

{¶12} Thus, this appeal is premature since there is no final judgment which could

be the subject of an appeal at this time. See State v. Bittner, 11th Dist. Lake No. 2019-

L-166, 2020-Ohio-544; State v. Payne, 4th Dist. Lawrence No. 16CA3, 2016-Ohio-1411;

State v. Anderson, 7th Dist. Mahoning No. 11-MA-43, 2012-Ohio-4390; State v. Evans,

6th Dist. Lucas No. L-08-1095, 2008-Ohio-2093.

{¶13} Accordingly, the appeal is dismissed for lack of a final appealable order.

MARY JANE TRAPP, P.J.,

THOMAS R. WRIGHT, J.,

concur.

Case No. 2021-P-0091