State v. Pruitt

2012 Ohio 1535

Opinion

[Cite as State v. Pruitt, 2012-Ohio-1535.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 96852

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

KENNY PRUITT DEFENDANT-APPELLANT

JUDGMENT: DISMISSED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-542464

BEFORE: Celebrezze, J., Blackmon, A.J., and Boyle, J.

RELEASED AND JOURNALIZED: April 5, 2012 ATTORNEY FOR APPELLANT

R. Brian Moriarty R. Brian Moriarty, L.L.C. 2000 Standard Building 1370 Ontario Street Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

William D. Mason Cuyahoga County Prosecutor BY: Norman Schroth Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 FRANK D. CELEBREZZE, JR., J.:

{¶1} Appellant, Kenny Pruitt, brings the instant appeal from his no-contest plea to

several charges. After a review of the trial court’s entry of conviction and sentence in

this case, we must dismiss for lack of a final, appealable order.

{¶2} After an unsuccessful motion to suppress, appellant changed his plea from

not guilty to no contest. The trial court found him guilty of all 12 charges in the

indictment: three counts of aggravated robbery in violation of R.C. 2911.01(A); three

counts of felonious assault in violation of R.C. 2903.11(A); one count of aggravated

burglary in violation of R.C. 2911.11(A); one count of kidnapping in violation of R.C.

2905.01(A); one count of having a weapon while under disability in violation of R.C.

2923.13(A); one count of carrying a concealed weapon in violation of R.C. 2923.12(A);

one count of possession of criminal tools in violation of R.C. 2923.24; and one count of

tampering with evidence in violation of R.C. 2921.12(A).

{¶3} In its May 27, 2011, nunc pro tunc sentencing entry, the trial court imposed

an aggregate ten-year prison sentence. However, the entry did not impose sentence on

Count 6, aggravated robbery, because the trial court found this charge was a duplicate of

Count 1. The trial court had previously found appellant guilty of this count during his

plea hearing. This court remanded the case to the trial court to clear up the ambiguity in Count 6, but the court issued a journal entry stating, “THERE WAS NO SENTENCE ON

COUNT 6 AS REFERENCED IN THE JUDGEMENT ENTRY BECAUSE COUNT 1

AND COUNT 6 ARE IDENTICAL AND REDUNDANT.”

{¶4} “A judgment of conviction is a final order subject to appeal under R.C.

2505.02 when it sets forth (1) the fact of the conviction, (2) the sentence, (3) the judge’s

signature, and (4) the time stamp indicating the entry upon the journal by the clerk.”

State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142, at paragraph one

of the syllabus.

{¶5} The trial court’s entry of sentence does not dispose of all charges against

appellant. “[A] trial court’s failure to dispose of any of the charges against a defendant

in a single case renders the trial court’s journal entry non-final in regard to all of the

charges against him.” State v. Goodwin, 9th Dist. No. 23337, 2007-Ohio-2343, ¶ 7.

This is because “the Ohio Constitution limits appeals to final orders ‘as a means of

preventing piecemeal litigation, avoiding delay, and promoting judicial economy.’” Id.

at ¶ 11, quoting Wilcox v. Nick’s L.A. Prods., 9th Dist. No. 15064, 1991 WL 168593, *1

(Aug. 28, 1991), citing State v. Torco Termite Pest Control, 27 Ohio App.3d 233, 234,

500 N.E.2d 401 (10th Dist.1985).

{¶6} The trial court’s journal entry finds appellant guilty of both identical counts

of aggravated robbery, but does not impose sentence on Count 6 or find that it merges

with Count 1. All counts must be properly disposed of by merging them as allied

offenses, dismissing them, or imposing sentence. An order setting forth that a charge is redundant does none of these things. Therefore, this court lacks a final, appealable order

in this case.

{¶7} Accordingly, this appeal is dismissed.

It is ordered that appellee recover of appellant costs herein taxed.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

FRANK D. CELEBREZZE, JR., JUDGE

PATRICIA ANN BLACKMON, A.J., and MARY J. BOYLE, J., CONCUR