STATE OF OHIO v. RYAN D. BELLMAN
C.A. No. 15CA010525
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
June 15, 2015
[Cite as State v. Bellman, 2015-Ohio-2303.]
SCHAFER, Judge.
STATE OF OHIO Appellee v. RYAN D. BELLMAN Appellant; COUNTY OF LORAIN; APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 13CR087131
Dated: June 15, 2015
SCHAFER, Judge.
{¶1} Defendant-Appellant, Ryan D. Bellman, appeals a judgment of the Lorain County Court of Common Pleas ordering him to pay $15,296.00 as part of his intervention plan in lieu of conviction. This Court dismisses the appeal for lack of a final, appealable order.
I.
{¶2} On April 24, 2013, a grand jury indicted Defendant-Appellant, Ryan D. Bellman, with one count of receiving stolen property in violation of
{¶3} On June 11, 2013, Mr. Bellman filed a request for intervention in lieu of conviction under
{¶4} The trial court held a restitution hearing on November 18, 2013. Based upon the testimony, evidence, and arguments presented at the hearing, the trial court found that restitution in the matter amounted to $15,296.00. The trial court ordered Mr. Bellman to pay that restitution amount as part of his intervention plan.
{¶5} Mr. Bellman now appeals the trial court‘s restitution order and raises four assignments of error for this Court‘s review.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED BY ORDERING $15,296 IN RESTITUTION, EVEN THOUGH DIXIE PIPE HAD MARKED THE PIPES AS SCRAP, AND THE PIPES’ SCRAP VALUE WAS $1,834.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED BY ORDERING $15,296 IN RESTIUTION BASED ON DIXIE PIPE‘S SPECULATIVE TESTIMONY.
ASSIGNMENT OF ERROR III
THE TRIAL COURT ERRED BY ORDERING $15,296 IN RESTITUTION BECAUSE THE ORDER IS A WINDFALL BASED, IN PART, ON DIXIE WHITE‘S [SIC] PROFIT MARGIN.
ASSIGNMENT OF ERROR IV
THE TRIAL COURT ERRED BY FAILING TO CONSIDER MR. BELLMAN‘S ABILITY TO PAY RESTITUTION.
{¶6} Although the parties did not raise the issue of jurisdiction, this Court is obligated to raise it sua sponte. State v. Harger, 9th Dist. Summit No. 26208, 2012–Ohio–2604, ¶ 4. This Court has jurisdiction only to hear an appeal taken from a judgment or final, appealable order.
{¶7}
An order is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial, when it is one of the following:
(1) An order that affects a substantial right in an action that in effect determines the action and prevents a judgment;
(2) An order that affects a substantial right made in a special proceeding or upon a summary application in an action after judgment;
* * *
(4) An order that grants or denies a provisional remedy and to which both of the following apply:
(a) The order in effect determines the action with respect to the provisional remedy and prevents a judgment in the action in favor of the appealing party with respect to the provisional remedy.
(b) The appealing party would not be afforded a meaningful or effective remedy by an appeal following final judgment as to all proceedings, issues, claims, and parties in the action.
We determine that the trial court‘s ordered intervention plan in this case does not fall within any of the categories enumerated in
{¶8} To begin, we note that the trial court‘s order requiring Mr. Bellman to pay restitution as part of his intervention plan did not determine the action. Although Mr. Bellman pled guilty to receiving stolen property, the trial court elected not to enter a conviction. Instead, the trial court granted Mr. Bellman‘s request for intervention in lieu of conviction and stayed the
{¶9} Moreover,
{¶10}
{¶11} Lastly, as used in
a proceeding ancillary to an action, including, but not limited to, a proceeding for a preliminary injunction, attachment, discovery of privileged matter, suppression of evidence, a prima-facie showing pursuant to section 2307.85 or 2307.86 of the Revised Code, a prima-facie showing pursuant to section 2307.92 of the Revised Code, or a finding made pursuant to division (A)(3) of section 2307.93 of the Revised Code.
III.
{¶12} In light of the foregoing, Mr. Bellman‘s appeal is dismissed.
Appeal dismissed.
Costs taxed to Appellant.
JULIE A. SCHAFER
FOR THE COURT
WHITMORE, P. J. CONCURS.
MOORE, J. CONCURRING IN JUDGMENT ONLY.
{¶13} I agree that the appeal must be dismissed because of the lack of a final appealable order. I further concur in the majority‘s analysis insofar as the majority has determined that the order appealed did not affect a substantial right. However, I disagree with the majority‘s analysis as it pertains to whether intervention in lieu of conviction is a provisional remedy.
{¶14} I believe that intervention in lieu of conviction is a proceeding ancillary to, i.e. “attendant upon[,]” a criminal proceeding. See Community First Bank & Trust v. Dafoe, 108 Ohio St.3d 472, 2006-Ohio-1503, ¶ 24. Accordingly, although it is not specifically enumerated as a provisional remedy in
{¶15} Nonetheless, I do not believe that the order at issue here “prevent[ed] a judgment in the action in favor of the appealing party with respect to the provisional remedy.”
{¶16} I express no opinion on whether a defendant could appeal the denial of a motion for intervention in lieu of conviction, as we need not reach that issue under the facts of this case. See
Based upon the foregoing reasons, I concur in the judgment.
APPEARANCES:
MATTHEW M. NEE, Attorney at Law, for Appellant.
DENNIS P. WILL, Prosecuting Attorney, and NATASHA RUIZ GUERRIERI, Assistant Prosecuting Attorney, for Appellee.