State v. Singh

2011 Ohio 4119

• Court: Ohio Court of Appeals
• Decided: August 18, 2011
• Docket: 96049
• Status: Published

Opinion

[Cite as State v. Singh, 2011-Ohio-4119.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 96049

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

DAVANA SINGH DEFENDANT-APPELLANT

JUDGMENT: DISMISSED

Criminal Appeal from the Cuyahoga County Common Pleas Court Case No. CR-536131

BEFORE: E. Gallagher, J., Jones, P.J., and Cooney, J. 2

RELEASED AND JOURNALIZED: August 18, 2011

ATTORNEYS FOR APPELLANT

Robert L. Tobik Public Defender BY: David M. King Assistant Public Defender 310 Lakeside Avenue Suite 200 Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

William D. Mason Cuyahoga County Prosecutor BY: Tiffany Hill Assistant County Prosecutor The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113

EILEEN A. GALLAGHER, J.:

{¶ 1} Davana Singh appeals from the decision of the trial court.

Singh argues that his convictions violate his Sixth Amendment right to

confront witnesses, that his convictions are against the manifest weight of

the evidence, and that his trial counsel rendered ineffective assistance.

Upon review of this record, this court is compelled to dismiss this case for 3

lack of jurisdiction.

{¶ 2} In March 2010, Detective John Graves of the Cleveland Police

Department received a complaint that Singh was selling cigarettes, alcohol,

and marijuana to underage persons in his store located at 3425 Fulton Road.

After receiving the complaint Detective Graves met with the complainants

who were a mother and her seventeen-year-old daughter. During the

interview, the seventeen-year-old agreed to act as a confidential informant

(“CI”) and her mother approved the paperwork.

{¶ 3} On March 22 and 23, 2010, the CI conducted two buys from

Singh at the direction of Detective Graves. During both purchases, officers

searched the CI both before and after the buy and found her to be free of

contraband. The officers also fitted the CI with an audio and video

recording device and provided the CI with marked buy money. On both

dates, the CI purchased marijuana from Singh; the video surveillance

equipment captured the controlled purchases.

{¶ 4} Detective Graves issued a search warrant for Singh’s store and,

on March 23, 2010, executed the warrant. While searching the premises,

the officers found a pill bottle that they believe was used to store the

marijuana as well as a semi-automatic handgun that was missing its serial

number. The officers also found over $6,000 in cash, multiple cartons of 4

cigarettes that did not have the Cuyahoga County tax stamp on them, and

an Ohio Directional Card on a shelf behind the counter. Singh denied

selling marijuana from the store.

{¶ 5} On April 27, 2010, a Cuyahoga County Grand Jury returned an

indictment charging Singh with one count of trafficking with a juvenile

specification, one count of trafficking with juvenile, firearm, and forfeiture

specifications, one count of possession of a defaced firearm with forfeiture

specifications, one count of possession of criminal tools with forfeiture

specifications, and one count of trafficking in or illegal use of food stamps

with forfeiture specifications. Singh elected to proceed to trial, and on

September 24, 2010, his jury trial began. At the close of the state’s case,

Singh moved for a judgment of acquittal, which the trial court granted as to

the juvenile specifications attached to Counts 1 and 2, and to Count 5 in its

entirety. That same day, the jury found Singh guilty of both trafficking

offenses as charged, but not guilty of the firearm specification, guilty of

possession of a defaced firearm as charged in the indictment, and guilty of

possession of criminal tools as charged.

{¶ 6} On October 25, 2010, the trial court sentenced Singh to one year

of community controlled sanctions with the warning that any violation of the

terms and conditions would result in a prison term of six months. 5

{¶ 7} Singh appeals, raising the three assignments of error contained

in the appendix to this opinion. However, this court cannot address the

merits of this appeal because the court lacks jurisdiction to do so. The order

of sentence issued does not constitute a final appealable order.

{¶ 8} This court is compelled to dismiss on the authority of State v.

Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163, State v. Waters,

Cuyahoga App. No. 85691, 2005-Ohio-5137, and State v. Dumas, Cuyahoga

App. No. 95760, 2011-Ohio-2926. In this case, the trial court imposed a

single term of community controlled sanctions for all four of Singh’s

convictions, an error that renders us without jurisdiction to rule on the

merits of the instant appeal.

{¶ 9} Crim.R. 32(C) provides that a “judgment of conviction shall set

forth * * * the verdict, or findings, upon which each conviction is based, and

the sentence.” Thus, absent either a specific finding of guilt or the

imposition of sentence on each and every offense for which a defendant is

convicted, no final appealable order exists. Waters; State v. Garner,

Trumbull App. No. 2002-T-0025, 2003-Ohio-5222; State v. Collins (Oct. 18,

2001), Cuyahoga App. No. 79064. Without a final appealable order, this

court lacks jurisdiction to hear this appeal. Waters.

{¶ 10} In Garner, the Eleventh District noted that “[n]owhere in R.C. 6

2929.15, which governs community control sanctions, does it state that if a

court chooses to sentence a person to something other than a prison term the

court may impose only a single term, regardless of the number of charges.”

Such a procedure “not only leaves one of the offenses without a sentence, but

it also prevents th[e appellate] court from determining to which offense the

given sentence actually applies. As a result, there is no final appealable

[order] for the [appellate] court to review.” Id.

{¶ 11} This court adheres to the same analysis. In State v. Hicks,

Cuyahoga App. No. 84418, 2004-Ohio-6113, this court reminded the trial

court that pursuant to Crim.R. 32(C), the duty to set forth the verdict or

finding and the sentence for each and every criminal charge is “mandatory”;

therefore, an order that “fails to impose sentence for an offense for which the

offender was found guilty not only violates this rule, but renders the

resultant order non-final and not immediately appealable.”

{¶ 12} The journal entry of Singh’s sentence is defective since it neither

states which conviction is subject to community controlled sanctions nor

imposes a sentence for each conviction. It, therefore, does not constitute a

final appealable order. See Waters; Hicks. Consequently, this appeal is

dismissed.

It is ordered that appellee recover from appellant costs herein taxed. 7

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

Rules of Appellate Procedure.

EILEEN A. GALLAGHER, JUDGE

LARRY A. JONES, P.J., and COLLEEN CONWAY COONEY, J., CONCUR

Appendix

Assignments of Error:

“I. Mr. Singh’s conviction violates his Sixth Amendment right to confront witnesses and to present his defense because the state did not reveal the identity of the confidential informant.”

“II. Defendant’s convictions for drug trafficking, possession of defaced firearm, and possession of criminal tools were against the manifest weight of the evidence.”

“III. Defendant Davana Singh was denied effective assistance of counsel in violation of the Sixth and Fourteenth Amendments to the U.S. Constitution and Article I, Section 10 of the Ohio Constitution.”