State v. Pennington

932 N.E.2d 941, 187 Ohio App. 3d 526
CourtOhio Court of Appeals
DecidedMay 14, 2010
DocketNo. 23367
StatusPublished
Cited by8 cases

This text of 932 N.E.2d 941 (State v. Pennington) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Pennington, 932 N.E.2d 941, 187 Ohio App. 3d 526 (Ohio Ct. App. 2010).

Opinion

Froelich, Judge.

{¶ 1} Jason Pennington appeals from an order of the Dayton Municipal Court, denying his motion to dismiss a notice of community-control violation and to vacate community control. Upon review of the record, we find that neither the trial court’s decision denying his motion nor the magistrate’s sentencing entry imposing community control was a final, appealable order. Accordingly, Pennington’s appeal is dismissed for lack of a final, appealable order.

I

{¶ 2} On April 30, 2008, Jason Pennington, acting without counsel, pleaded guilty to petty theft, a first-degree misdemeanor, before a magistrate in the Dayton Municipal Court. The magistrate sentenced him to 180 days in jail, all of which was suspended. Pennington was ordered to complete one year of community control, which was conditioned on his completion of a theft clinic and payment of a fine of $150, restitution of $93.80, and court costs. The same day, the magistrate filed a “judgment entry,” indicating that Pennington had pleaded guilty to petty theft and setting forth her recommended sentence; this entry was signed on a line for the magistrate’s signature; there was no line for a judge’s signature. Simultaneously, the magistrate filed a “sentencing entry,” which set forth the same findings and sentence. The sentencing entry was signed by the magistrate on a line for the judge’s signature, and her name was listed in the caption as the judge. Pennington did not file objections to the magistrate’s recommended sentence. Nothing in the record demonstrates that the magistrate’s sentencing entry was adopted by a judge or that the trial court entered a different judgment of conviction in Pennington’s case.

[529]*529{¶ 3} In January 2009, Pennington received a notice indicating that he had violated his community control by failing to report for scheduled probation appointments, by incurring new criminal charges in Vandalia Municipal Court for drug paraphernalia and theft, and by failing to comply with the Center for Alcoholism and Drug Addiction Services (“CADAS”). The notice also indicated that a community-control-revocation hearing was to be held. The notice had no signature, but had the magistrate’s name with the title, “Judge,” typed at the bottom. Pennington was ordered to appear for a revocation hearing on February 6, 2009; the order has a line for a judge’s signature, but it is unsigned.

{¶ 4} After receiving the notice, Pennington obtained counsel through the Public Defender’s Office and moved to dismiss the notice of violation and to vacate the order placing him on community control. Pennington argued that the magistrate had failed to obtain a valid waiver of counsel at his plea hearing and, thus, the magistrate had no authority to place him on community control and could not now revoke his community control.

{¶ 5} Although not reflected in the record, Pennington states that his motion was orally denied on February 6, 2009. The docket contains a handwritten notation initialed by the magistrate, also dated February 6, 2009, that says that the motion to dismiss and vacate community control “is denied - Def. was properly advised of his rts at arraignment.” This notation was not adopted by a trial judge, and the page on which the notation was written was not filed.

{¶ 6} Pennington moved to stay all proceedings, including community control, pending an appeal; the motion to stay was granted by the magistrate. There is no indication that the judge reviewed or adopted the magistrate’s order. Subsequently, on March 11, 2009, the magistrate signed an entry denying Pennington’s motion to dismiss notice of community control and to vacate community control; five days later, a trial judge signed the entry and adopted the magistrate’s decision. The entry was filed with the clerk of courts on March 17, 2009. Pennington did not file objections to the magistrate’s decision.

{¶ 7} Pennington appeals from the March 17, 2009, order, denying his motion to dismiss the notice of community-control violation and to vacate community control.

II

{¶ 8} Pennington’s sole assignment of error states:

{¶ 9} “The magistrate below had no authority to proceed against appellant for violating community control, because the magistrate’s original sentencing entry that placed appellant on community control had never been properly adopted by the court.”

[530]*530{¶ 10} Pennington claims that he did not “suffer a conviction” in this case, because the trial court never adopted the magistrate’s sentencing decision recommending a suspended jail sentence and community control for petty theft. Pennington thus argues that the magistrate lacked the authority to commence proceedings against him for alleged violations of the conditions of his community control. Pennington further claims that, “[b]ecause Mr. Pennington had not suffered a conviction in this case, defense’s motion [to dismiss the notice of violation and to vacate community control] was a nullity, as was the court’s adoption of the magistrate’s decision denying defense’s motion. Without the court’s having adopted the magistrate’s original sentencing of Mr. Pennington, all that came after was of no legal effect.”

{¶ 11} The state responds that Pennington’s appeal is “plagued with several procedural errors.” First, the state notes that Pennington is raising for the first time on appeal that the trial court did not adopt the magistrate’s sentencing decision. The state notes that Pennington appears to have abandoned his argument before the trial court that his plea was ineffective because he did not validly waive his right to counsel. Second, even accepting for the sake of argument that Pennington never “suffered a conviction,” the state asserts that his remedy is to seek a revised sentencing entry from the trial court, not an appeal. Third, the state asserts that Pennington waived any objection to the legal effect of the magistrate’s decisions, because he failed to file any objections with the trial court. Finally, the state claims that the trial court did, in fact, adopt the magistrate’s April 30, 2008 sentencing decision and, therefore, the magistrate had authority to initiate a community-control-violation hearing against him.1

(¶ 12} Crim.R. 19 governs the authority of magistrates in criminal cases. Of relevance to this appeal, magistrates sitting in misdemeanor cases are authorized to “determine guilt or innocence, receive statements in explanation and in mitigation of sentence, and recommend a penalty to be imposed.” Crim.R. 19(C)(l)(c)(ii). If the possible penalty for the offense includes imprisonment, the matter may be referred to a magistrate only with the unanimous consent of the parties, in writing or on the record in open court. Id. Pennington’s offense was a first-degree misdemeanor, subject to 180 days of confinement. There is nothing in the record that indicates that Pennington consented to the referral to the magistrate, as required. We state no opinion as to whether this lack of consent has any bearing on the validity of Pennington’s plea.

[531]*531{¶ 13} A party may file written objections to a magistrate’s decision within 14 days of the filing of the decision. Crim.R. 19(D)(3)(b)(i). Objections must be specific and state with particularity all grounds for objection. Crim.R. 19(D)(3)(b)(ii).

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Bluebook (online)
932 N.E.2d 941, 187 Ohio App. 3d 526, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-pennington-ohioctapp-2010.