State v. Swingle, Ct2007-0057 (5-6-2008)

2008 Ohio 2214

• Court: Ohio Court of Appeals
• Decided: May 6, 2008
• Docket: No. CT2007-0057.
• Status: Published

Opinion

OPINION {¶ 1} Defendant-appellant Robert G. Swingle, Jr. appeals the August 20, 2007, denial of his Motion for Judicial Release by the Muskingum County Court of Common Pleas. Plaintiff-Appellee is the State of Ohio.

STATEMENT OF THE CASE AND FACTS {¶ 2} Defendant-appellant Robert G. Swingle, Jr. was indicted on five counts of drug trafficking involving separate incidents occurring on different days. Plea negotiations yielded a recommendation from the State of Ohio that Defendant-Appellant serve an aggregate term of three years imprisonment. (T. at 3-4).

{¶ 3} On October 2, 2006, Defendant-Appellant entered a plea of guilty to all five counts. (Plea T. at 1-17).

{¶ 4} At the plea hearing, the trial court informed Defendant-Appellant that he was facing a mandatory prison term. (Plea T. at 5-6).

{¶ 5} At the sentencing hearing, defense counsel indicated on the record that Defendant-Appellant was in agreement with the sentence being recommended by the State (Sent. T. at 3-6). Nowhere in the transcript is there any mention of eligibility or ineligibility for judicial release.

{¶ 6} On November 27, 2006, the trial court sentenced Defendant-Appellant to a mandatory sentence of three years in prison on count four, a felony of the third degree (Sent. T. at 6-7). The remaining counts ran concurrently to that three-year sentence. Id.

{¶ 7} On August 9, 2006, Defendant-Appellant filed a request for judicial release after serving six months of that sentence.

{¶ 8} By Judgment Entry file August 20, 2006, the trial court denied that request based upon the mandatory nature of the sentence. This appeal follows.

{¶ 9} Appellant assigns the following sole error for review:

ASSIGNMENT OF ERROR {¶ 10} "THE DEFENDANT-APPELLANT WAS DENIED DUE PROCESS, AS HIS PLEA WAS NOT KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY ENTERED."

I. {¶ 11} In his sole assignment of error, Appellant argues that his plea was not made knowingly, intelligently and/or knowingly.

{¶ 12} Upon review of the record we find that the decision from which Appellant is appealing is a denial of his motion for judicial release, not a motion to withdraw his guilty plea, which has not been filed.

{¶ 13} It is well-established that the denial of a motion for judicial release is not a final appealable order. State v. Masko, Trumbull App. No. 2004-T-0070, 2004-Ohio-5297, ¶ 2, citing State v. Singh (2001), 146 Ohio App.3d 38. We, therefore, lack jurisdiction to address this issue.

{¶ 14} For the foregoing reasons, Appellant's appeal is hereby dismissed.

Wise, J. Farmer, P. J., and Delaney, J., concur.

JUDGMENT ENTRY For the reasons stated in our accompanying Memorandum-Opinion, the appeal of the judgment of the Court of Common Pleas of Muskingum County, Ohio, is dismissed.

Costs assessed to Appellant.