State v. Sowards
2017 Ohio 8568
| Ohio Ct. App. | 2017Background
- In 2006 Sowards was convicted by jury of marijuana possession; the trial court sentenced him to prison and he remained released on bond pending appeal and numerous post-conviction filings.
- This court previously affirmed his conviction on direct appeal; Sowards pursued additional state and federal post-conviction and habeas matters over several years.
- In August 2017 the state moved to execute sentence; the trial court granted the motion and ordered Sowards to report to Gallia County Jail by August 31, 2017.
- Sowards appealed the trial court’s entry ordering him to report, arguing the court retained jurisdiction to modify or delay execution because he had not yet begun serving his sentence.
- The State argued the execution order was not a final appealable order because the criminal sentence became final on issuance of the final sentencing order and the execution entry was merely ministerial.
- The Fourth District dismissed the appeal for lack of jurisdiction, holding the execution order is not a final appealable order under R.C. 2505.02.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court's order executing sentence is a final appealable order | The State: execution order is not final and thus not appealable; conviction/sentence already final | Sowards: because he had not begun serving his sentence, court could modify and thus order is appealable | Court: Not final; execution entry is ministerial and does not affect a substantial right — appeal dismissed |
| Whether the order affects a "substantial right" under R.C. 2505.02(B)(1)/(2) | The State: no substantial right is affected; sentence was previously determined | Sowards: loss of release on bond is a significant right and can be protected by appeal | Court: No; execution of a previously affirmed sentence does not affect a substantial right and bail pending appeal is discretionary |
| Whether the entry is a provisional remedy under R.C. 2505.02(B)(4) | The State: execution order is not a provisional remedy | Sowards: (argued generally that court retains jurisdiction to alter execution) | Court: Not a provisional remedy; provisional remedies are ancillary protections (e.g., injunctions) and execution entries do not fit that category |
Key Cases Cited
- State ex rel. Scruggs v. Sadler, 97 Ohio St.3d 78 (2002) (order is final appealable only if it meets R.C. 2505.02 and Civ.R. 54(B) where applicable)
- Bell v. Mt. Sinai Med. Ctr., 67 Ohio St.3d 60 (1993) (an order affects a substantial right when, if not immediately appealable, it would foreclose appropriate relief)
- Chef Italiano Corp. v. Kent State Univ., 44 Ohio St.3d 86 (1989) (same final-order threshold principles)
- State v. Carlisle, 131 Ohio St.3d 127 (2011) (criminal sentence is final upon issuance of the final order)