State v. Payne

2019 Ohio 80

• Court: Ohio Court of Appeals
• Decided: January 14, 2019
• Docket: CA2018-04-081, CA2018-04-082
• Status: Published

Opinion

[Cite as State v. Payne, 2019-Ohio-80.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO, : CASE NOS. CA2018-04-081 Appellee, : CA2018-04-082

: OPINION - vs - 1/14/2019 :

NICHOLAS R. PAYNE, :

Appellant. :

CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2016-07-0996

Michael T. Gmoser, Butler County Prosecuting Attorney, John C. Heinkel, Government Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for appellee

Michele Temmel, 6 South Second Street, Suite 305, Hamilton, Ohio 45011, for appellant

PIPER, J.

{¶ 1} Appellant, Nicholas Payne, appeals a decision of the Butler County Court of

Common Pleas revoking his community control and imposing a prison sentence.

{¶ 2} Payne was indicted on two counts of nonsupport of dependents, to which he

pled guilty to one count and the other count was dismissed. A month later, Payne was

indicted on four additional counts of nonsupport of dependents, to which he pled guilty to two

counts and two counts were dismissed. The trial court sentenced Payne to community Butler CA2018-04-081 CA2018-04-082

control on all charges.

{¶ 3} Payne violated the terms of his community control sanctions in February 2018

when he failed to report to his probation officer and his whereabouts were unknown. Two

months later, a second notice of alleged violations was issued, alleging that attempts to

locate and make contact with Payne had been unsuccessful and that Payne had failed to pay

support as ordered. Payne's failure to report constituted a violation of Rule 5 of his

community control sanctions, and failure to pay support constituted a violation of Rule 12.

{¶ 4} Payne later appeared for a violation hearing during which he admitted to a

single violation of his community control. However, Payne did not specify whether he was

admitting the Rule 5 violation or the Rule 12 violation. Even so, the trial court accepted

Payne's single admission. The trial court then revoked community control and sentenced

Payne accordingly. The trial court later issued an entry in which it addressed Payne's single

violation of Rule 5, but did not address the alleged violation of Rule 12 or offer a disposition

of that charge. Payne then filed the current appeal, challenging the sentence imposed and

the revocation of his community control. While Payne raises two assignments of error for our

review, we find that we lack jurisdiction to rule on Payne's arguments for lack of a final

appealable order.

{¶ 5} Where the trial court's order fails to impose sentence for each charge, that

order is merely interlocutory because the trial court has a mandatory duty "to deal with each

and every charge prosecuted against a defendant." State v. Hoelscher, 9th Dist. Medina No.

05CA0085-M, 2006-Ohio-3531, ¶ 10. Interlocutory orders do not constitute final appealable

orders, as finality does not attach to an incomplete order. State v. Erickson, 12th Dist.

Warren No. CA2014-10-131, 2015-Ohio-2086.

{¶ 6} A review of the record indicates that Payne admitted to one violation of

community control even though the alleged violations were specific to violations of Rule 5 -2- Butler CA2018-04-081 CA2018-04-082

and Rule 12 of Payne's community control sanctions. Accordingly, the alleged violation of

Rule 12 is still pending before the trial court so that the trial court's revocation of community

control and imposition of sentence for the Rule 5 violation is merely interlocutory.

{¶ 7} Due to the trial court's failure to dispose of both community control violation

allegations, no final appealable order exists. Therefore, we lack jurisdiction to consider

Payne'

{¶ 8} s assignments of error and dismiss his appeal for lack of a final appealable

order.

{¶ 9} Appeal dismissed.

S. POWELL, P.J., and HENDRICKSON, J., concur.

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