State v. BrooksState v. Brooks
COUNSEL FOR APPELLANT: Ulious Brooks, No. 453-172, Southern Ohio Correctional Facility, P.O. Box 45699, Lucasville, Ohio 45699, Pro Se
COUNSEL FOR APPELLEE: Mark E. Kuhn, Scioto County Prosecuting Attorney, and Joseph L. Hale, Scioto County Assistant Prosecuting Attorney, 602 Seventh Street, Portsmouth, Ohio 45662
CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED: 6-25-10
ABELE, J.
{¶ 1} This is an appeal from a Scioto County Common Pleas Court judgment that denied a “petition to vacate or set aside sentence” filed by Ulious Brooks, defendant below and appellant herein. Appellant assigns the following errors for review:
FIRST ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED BY ISSUING AND
SUMMONING THE APPELLANT-DEFENDANT TO APPEAR IN COURT WITH AN UNCONSTITUTIONAL SUMMONS UPON INDICTMENT SHEET, THAT WAS NOT SIGNED BY A JUDGE OF THE TRIAL COURT AS REQUIRED BY CRIMINAL RULE[S] (4 AND 9) AND R.C. 2935.18 AND FORM VI OF THE APPENDIX FORM OF THE OHIO RULES OF CRIMINAL PROCEDURE WHICH ALSO VIOLATED THE APPELLANT-DEFENDANT[‘S] FOURTEENTH AMENDMENT RIGHT [sic] DUE PROCESS CLAUSE OF THE UNITED STATES CONSTITUTION.”
SECOND ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED BY NOT ALLOWING THE APPELLANT-DEFENDANT TO ATTEND THE MOTION TO VACATE OR SET ASIDE SENTENCE HEARING, WHICH VIOLATED THE APPELLANT [sic] FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION DUE PROCESS CLAUSE, AND WHICH ALSO VIOLATED
R.C. 2953.22 .”
THIRD ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED BY VIOLATING THE APPELLANTS [sic] FIFTH AMENDMENT OF THE UNITED STATES CONSTITUTION BY HOLDING THE APPELLANT-DEFENDANT TO ANSWER TO A[N] INFAMOUS CRIME WITHOUT A PRESENTMENT OF AN INDICTMENT OF A GRAND JUROR [sic]. AND THE CONVICTION VIOLATED THE APPELLANT’S FOURTEENTH AMENDMENT [sic] OF THE UNITED STATES CONSTITUTION DUE PROCESS CLAUSE.”
FOURTH ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED BY OVERRULING THE APPELLANTS [sic] PETITION TO VACATE OR SET ASIDE SENTENCE AND NOT GIVING A FINDING OF FACT AND CONCLUSION OF LAW, EVEN OVER OBJECTIONS, WHICH VIOLATED THE APPELLANTS [sic] FOURTEENTH AMENDMENT DUE PROCESS CLAUSE OF THE UNITED STATES CONSTITUTION[.]”
{¶ 2} On January 23, 2009, the Scioto County Grand Jury returned an
{¶ 3} Appellant commenced the instant proceeding with his “petition to vacate or set aside sentence.” Although his claims are somewhat difficult to understand, they appear to include (1) an assertion that his conviction occurred “without an indictment from a grand jury,” and (2) the summons did not comply with
{¶ 4} We first proceed, out of order, to appellant‘s fourth assignment of error. Appellant asserts that the trial court erred by denying his motion without providing findings of fact and conclusions of law. Ohio law requires a trial court to make findings of fact and conclusions of law when it dismisses a petition or denies postconviction relief on the merits.
{¶ 5} In the case sub judice, the trial court’s October 27, 2009 entry does not contain findings of fact and conclusions of law. Thus, the entry does not constitute a final appealable order.1
{¶ 6} Accordingly, because we have no final appealable order in this case, we are without jurisdiction to consider the appeal and we must dismiss this appeal.
APPEAL DISMISSED.
JUDGMENT ENTRY
It is ordered that the appeal be dismissed and appellee recover of appellant the
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Scioto County Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Harsha, J. & Kline, J.: Concur in Judgment & Opinion
For the Court
BY:
Peter B. Abele, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.