2016 Ohio 1418
Ohio Ct. App.2016Background
- Juvenile C.K. was adjudicated delinquent for acts that would constitute second-degree felony burglary (R.C. 2911.12(A)(2)) and first-degree misdemeanor receiving stolen property after testimony at an adjudicatory hearing and a magistrate’s decision dated May 18, 2015.
- No objections to the magistrate’s adjudication were filed, so the magistrate’s decision became an order of the juvenile court.
- A dispositional hearing occurred June 3, 2015; the magistrate orally committed C.K. to the Department of Youth Services (DYS) for a minimum of 12 months to a maximum until age 21 and ordered $680 restitution; the magistrate then filed a June 3 dispositional entry that imposed the same terms (signed by the magistrate).
- On June 8, 2015 the juvenile court judge filed a judgment entry committing C.K. to DYS for the same indeterminate term but the judge’s entry did not impose restitution and did not dispose of the receiving-stolen-property adjudication.
- The State conceded the record lacked evidence to support second-degree burglary because there was no proof someone was present or likely to be present; it urged entry of the lesser-included third-degree burglary. The juvenile appellate court sua sponte questioned whether the June 8 entry was a final, appealable order because it failed to dispose of all adjudications.
Issues
| Issue | C.K.'s Argument | State's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for 2nd-degree burglary | Evidence insufficient to prove person present or likely to be present | Concedes insufficiency for 2nd-degree; asks for conviction on lesser-included 3rd-degree burglary | Court noted State conceded insufficiency but did not decide on merits because appeal was not from a final order |
| Restitution ($680) | Restitution ordered by magistrate lacked evidentiary support per appellant | State argued restitution was supported by victim-witness advocate and PSI information | Court declined to rule on restitution because the appealed June 8 entry did not impose restitution; no restitution currently exists on the appeal record |
| Ineffective assistance for failure to object to restitution | Counsel ineffective for not objecting to restitution order | Implicitly that objection would be moot if restitution supported; not fully argued due to record posture | Court did not reach ineffective-assistance claim because appeal was interlocutory |
| Final, appealable order / jurisdiction | Appellant sought appellate review of June 8 judgment entry | State did not dispute finality in jurisdictional sense; court raised jurisdictional defect | Appeal dismissed for lack of jurisdiction because the June 8 judgment entry failed to dispose of the receiving-stolen-property adjudication; no final, appealable order existed |
Key Cases Cited
- In re Sekulich, 65 Ohio St.2d 13 (holding a delinquency finding without disposition is not a final, appealable order)
- State ex rel. McGinty v. Eighth Dist. Ct. of Appeals, 142 Ohio St.3d 100 (noting a court lacking jurisdiction over an appeal also lacks jurisdiction to issue a stay)