Statte v. Emrick

2015 Ohio 262

• Court: Ohio Court of Appeals
• Decided: January 20, 2015
• Docket: 14 CA 32
• Status: Published

Opinion

[Cite as Statte v. Emrick, 2015-Ohio-262.]

COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. John W. Wise, P. J. Plaintiff-Appellee Hon. Patricia A. Delaney, J. Hon. Craig R. Baldwin, J. -vs- Case No. 14 CA 32 RYAN EMRICK

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Municipal Court, Case No. 13 CRB 01073

JUDGMENT: Dismissed and Remanded

DATE OF JUDGMENT ENTRY: January 20, 2015

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

R. KYLE WITT CHARLES M. ELSEA RANDALL T. ULLOM STEBELTON, ARANDA & SNIDER LAW DIRECTORS 109 North Broad Street, Suite 200 Post Office 1008 Post Office Box 130 Lancaster, Ohio 43130 Lancaster, Ohio 43130 [Cite as Statte v. Emrick, 2015-Ohio-262.]

Wise, P. J.

{¶1}. Appellant Ryan Emrick appeals from a restitution order in the Fairfield

County Municipal Court, following his plea of guilty to one count of criminal mischief.

The relevant facts leading to this appeal are as follows.

{¶2}. In February 2013 and April 2013, under two different trial court case

numbers, appellant was charged with misdemeanor counts of domestic violence,

unlawful restraint, and assault (two counts).

{¶3}. On July 25, 2013, appellant appeared before the trial court and entered a

plea of guilty in case number 13CRB01073 to an amended charge of criminal mischief,

R.C. 2909.07(A)(1), a misdemeanor of the first degree. The remaining charges were

dismissed as part of a negotiated plea deal and agreed sentence recommendation. As

a condition of that agreement, appellant agreed to pay restitution to the victim in case

number 13CRB01073, Kevin Kempton, who had been injured in the altercation which

led to some of the aforementioned charges. Because there was no agreement at that

time as to an appropriate restitution amount, the parties recommended to the trial court

setting hearing for determination of restitution.

{¶4}. The trial court accepted the guilty plea and imposed sentence consisting

of a $100.00 fine, court costs, and 180 days in jail, all suspended in lieu of non-

reporting probation (two years). The court ordered restitution in general, but set the

matter for further hearing.

{¶5}. The trial court ultimately conducted a restitution hearing on January 29,

2014. [Cite as Statte v. Emrick, 2015-Ohio-262.]

{¶6}. Via a judgment entry issued on April 1, 2014, the trial court ordered

appellant to pay restitution of $4,028.64 to the victim, Kempton, representing various

expenses incurred at River Valley Orthopedics, Fairfield Medical Center, Fairfield

Anesthesia Associates, and other entities. Appellant was ordered to pay this amount at

the rate of $200.00 per month.

{¶7}. On May 1, 2014, appellant filed a notice of appeal. He herein raises the

following three Assignments of Error:

{¶8}. “I. THE TRIAL COURT ERRED IN IMPOSING RESTITUTION AFTER

THE DEFENDANT WAS ALREADY SENTENCED BY A FINAL ORDER ON JULY 25,

2013.

{¶9}. “II. THE TRIAL COURT ERRED IN THE AMOUNT OF RESTITUTION IT

ORDERED.

{¶10}. “III. THE TRIAL COURT ERRED IN FAILING TO ADEQUATELY

CONSIDER THE DEFENDANT'S ABILITY TO PAY RESTITUTION.”

I.

{¶11}. In his First Assignment of Error, appellant contends the trial court erred in

issuing a restitution order subsequent to its sentencing entry of July 25, 2013.

{¶12}. As an initial matter, as suggested in the State's response brief, we

address the issue of whether the judgment entry of restitution of April 1, 2014

constitutes a final appealable order.

{¶13}. The Ohio Supreme Court, in State v. Baker (2008), 119 Ohio St .3d 197,

201, 893 N.E.2d 163, 2008–Ohio–3330, held that the plea (if applicable), means of

conviction, and sentence must all be set forth in one signed judgment entry to [Cite as Statte v. Emrick, 2015-Ohio-262.]

constitute a final order for purpose of appealing a criminal conviction. Baker was

subsequently modified and clarified in State v. Lester, 130 Ohio St.3d 303, 958 N.E.2d

142, 2011–Ohio–5204, wherein the Ohio Supreme Court held, at paragraph one of the

syllabus: “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.”

{¶14}. Our research indicates that much of the Ohio case law analyzing Baker

and/or Lester is found in felony appeals; however, the rule of Baker/Lester has been

applied in misdemeanor cases. See, e.g., State v. Bonner, 8th Dist. Cuyahoga No.

93168, 2010-Ohio-2885, ¶ 8; State v. Allman, 2nd Dist. Montgomery No. 24693, 2012-

Ohio-413, ¶ 7-¶9; State v. Daniels, 1st Dist. Hamilton No. C–140242, 2014-Ohio-5160,

¶ 7. Furthermore, strict compliance with Crim.R. 32(C) is required in Ohio. State v.

Bolden, 12th Dist. Preble No. CA2003-03-007, 2004-Ohio-184, ¶ 30, citing State v.

Lovelace, 1st Dist. Hamilton No. C-970983, 1999 WL 12728.

{¶15}. A review of the present record reveals that the trial court's one-page

judgment entry of restitution filed April 1, 2014 states that appellant had entered a

guilty plea to criminal mischief under R.C. 2909.07 on July 25, 2013, but then merely

recites that the court "imposed sentence in accordance with the joint sentencing

recommendation ***." We find the trial court's failure to state appellant's sentence with

particularity in the restitution order means said order does not meet the Baker/Lester

criteria. In accordance with our precedent in State v. Riggs, 5th Dist. Licking No. 09-

CA-41, 2009-Ohio-6821, State v. Casteel, 5th Dist. Tuscarawas No. 11AP110043, [Cite as Statte v. Emrick, 2015-Ohio-262.]

2012–Ohio–2295, and State v. Burgess, 5th Dist. Stark No. No. 2012 CA 00119, 2013-

Ohio-234, we are compelled to dismiss the within appeal and remand the matter to the

trial court for the issuance of a final conviction, sentencing, and restitution entry in

compliance with the rule of Baker/Lester.1

{¶16}. We therefore will not presently reach the merits of appellant's First

Assignment of Error.

II., III.

{¶17}. In his Second and Third Assignments of Error, appellant contends the trial

court erred in ordering the amount of restitution and in its consideration of his ability to

pay.

{¶18}. Based on our above holding, we find appellant's Second and Third

Assignments of Error to be premature.

1 We thus find no merit in appellant's theory, based on State v. Carr, 5th Dist. Tuscarawas No. 2007AP120076, 2008–Ohio–3423, that the April 1, 2014 was a legal nullity. In Carr, restitution had been ordered after the original sentence had been issued and after the defendant's probation had ended, meaning the trial court had been divested of jurisdiction to impose additional sanctions. See id. at ¶ 16. [Cite as Statte v. Emrick, 2015-Ohio-262.]

{¶19}. For the reasons stated in the foregoing, the appeal of the decision of the

Municipal Court of Fairfield County, Ohio, is hereby dismissed, and the matter is

remanded for a final sentencing entry.

By: Wise, P. J.

Delaney, J., and

Baldwin, J., concur.

HON. JOHN W. WISE

HON. PATRICIA A. DELANEY

HON. CRAIG R. BALDWIN

JWW/d 1229 IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : RYAN EMRICK : : Defendant-Appellant : Case No. 14 CA 32

For the reasons stated in our accompanying Memorandum-Opinion, the appeal

of the judgment of the Municipal Court of Fairfield County, Ohio, is dismissed and the

matter remanded for further proceedings consistent with this opinion.

Costs assessed to appellant.