State v. JacksonState v. Jackson
Brian T. Goldberg, Cincinnati, Ohio, for Appellant.
Shane A. Tieman, Scioto County Prosecuting Attorney, and Jay Willis, Scioto County Assistant Prosecuting Attorney, Portsmouth, Ohio, fоr Appellee.
Smith, P.J.
{¶1} Appellant, Walter Jackson, appeals the judgment of the Scioto County Court of Common Pleas convicting him of 12 felony counts, as well as eight firearm specifications. The record reflects that Jackson was originally indicted on 8 felony counts and then was subsequently indicted under the same case number on 12 felony counts, some of which were different than those contained in the first indictment, and some of which were the same. He was tried before a jury on only the 12 counts contained in the second indictment and was ultimately found guilty оf all counts. On appeal, Jackson raises five assignments of error contending that
{¶2} However, because the trial court failed to dispose of the eight counts contained in the first indictment, no final appealable order exists. As a result, we lack jurisdiction to address the merits of Jackson‘s arguments and instead we must dismiss the appeal for lack of jurisdiction.
PROCEDURAL HISTORY
{¶3} On August 2, 2022, an indictment was filed charging Jackson with eight felony counts, as follows:
| Count One: | Trafficking in Heroin, in violation of |
| Count Two: | Trafficking in a Fentanyl Related Compound, in violation of |
| Count Three: | Possession of Heroin, in violation of |
| Count Four: | Possession of a Fentanyl-Related Compound, in violation of |
| Count Five: | Having Weapons While Under Disability, in violation of |
| Count Six: | Having Weapons While Under Disability, in violation of |
| Count Seven: | Improperly Handling Firearms in a Motor Vehicle, in violation of |
| Count Eight: | Possessing Criminal Tools, in violation of |
{¶4} Subsequently, on November 22, 2022, a second indictment was filed under the same case number charging Jackson with 12 felony counts. Some of the counts contained in the second indictment were same as those contained in the first indictment, some were different, and there were four new counts, as follows:
| Count One: | Trafficking in a Fentanyl-Related Compound, in violation of |
| Count Two: | Possession of a Fentanyl-Related Compound, in violation of |
| Count Three: | Trafficking in a Fentanyl-Related Compound, in violation of |
| Count Four: | Possession of a Fentanyl-Related Compound, in violation of |
| Count Five: | Trafficking in Cocaine, in violation of |
| Count Six: | Possession of Cocaine, in violation of |
| Count Seven: | Aggravated Trafficking in Drugs, in violation of |
| Count Eight: | Aggravated Possession of Drugs, in violation of |
| Count Nine: | Having Weapons While Under Disability, in violation of |
| Count Ten: | Having Weapons While Under Disability, in violation of |
| Count Eleven: | Improperly Handling Firearms in a Motor Vehicle, in violаtion of |
| Count Twelve: | Possessing Criminal Tools, in violation of |
{¶5} Thus, although both the first and second indictments included first-degree felony counts of possession of and trafficking in a fentanyl-related compound, the possession of heroin and trafficking in heroin charges contained in the first indictment were missing from the second indictment, which instead contained possession of and trafficking in cocaine charges. Additionally, the second indictment included second-degree felony counts of possession and trafficking in a fentanyl-related compound, in addition to the first-degree felony counts, as well third-degree felony counts of aggravated possession of and aggravated trafficking in drugs.
{¶6} Jackson was again arraigned and pled not guilty to the charges, but this time Jackson was represented by appointed counsel, who had replaced Jackson‘s previously retained counsel. During the second arraignment hearing and the pretrial hearings conducted thereafter, thе second indictment was referred to as a superseding indictment and it appears the parties only discussed the counts contained in the second indictment.
{¶7} The matter thereafter proceeded to trial on March 13, 2023. Jackson was found guilty of all 12 counts contained in the second indictment, along with eight firearm specifications. After merging several of the cоunts for purposes of
ASSIGNMENTS OF ERROR
I. THE TRIAL COURT ERRED TO THE PREJUDICE OF MR JACKSON‘S SIXTH AMENDMENT RIGHTS BY ENTERING JUDGEMENT [SIC] AND CONVICTION AFTER A TRIAL AT WHICH HE RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL FOR HIS DEFENSE.
II. THE TRIAL COURT ERRED TO THE PREJUDICE OF MR. JACKSON BY CONDUCTING THE TRIAL WITHOUT HIM BEING PRESENT.
III. THE TRIAL COURT ERRED TO THE PREJUDICE OF MR. JACKSON BY FAILING TO MERGE ALLIED OFFENSES OF SIMILAR IMPORT AT THE TIME OF SENTENCING.
IV. THE TRIAL COURT ERRED IN IMPOSING CONSECUTIVE SENTENCES WHEN THE RECORD DID NOT SUPPORT THE FINDINGS MADE BY THE TRIAL COURT TO IMPOSE CONSECUTIVE SENTENCES.
V. MR. JACKSON‘S CONVICTIONS WERE NOT SUPPORTED BY SUFFICIENT EVIDENCE AND IS [SIC] CONTARY TO THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶8} Before we address the merits of the appeal, we must determine whether we have jurisdiction to do so. Appellate courts “have such jurisdiction as may be prоvided by law to review and affirm, modify, or reverse judgments or final orders of the courts of record inferior to the court of appeals within the district * * * ”
{¶9} “The General Assembly enacted
{¶10} In this case, Jackson was charged in two indictments filed under the same case number. The trial court and parties appear to have treated the first indictment as if it had been dismissed and replaced by the second indictment (which was stamped as a “supersеding” indictment), and Jackson was convicted of all 12 counts contained in the second indictment, along with 8 firearm specifications. However, ” ‘[i]t is axiomatic that a court speaks only through its journal entries.’ ” State v. Richards, 2021-Ohio-389, ¶ 12 (4th Dist.), quoting State v. Payton, 2015-Ohio-1796, ¶ 7 (4th Dist.), in turn quoting State ex rel. Collier v. Farley, 2005-Ohio-4204, ¶ 18 (4th Dist.). The trial court did not dispose of the counts in the first indictment via journal entry.
{¶11} As a result, the eight counts in the first indictment constitute “hanging charges” which prevent the trial court‘s judgment еntry of sentence from being a final appealable order. See State v. Kuntz, 2023-Ohio-669, ¶ 4, 7 (4th Dist.) (although trial court orally granted state‘s motion to dismiss two counts in first
APPEAL DISMISSED.
It is ordered that the APPEAL BE DISMISSED and costs be assessed to Appellant.
The Court finds there were reаsonable 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.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed 60 days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the 60-day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the 45-day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of 60 days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Abele, J. and Hess, J., concur in Judgment and Opinion.
For the Court,
Jason P. Smith
Presiding 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.