State v. PenningtonState v. Pennington
{¶ 1} Jason Pennington appeals from an order of the Dayton Municipal Court, denying his motion to dismiss a notice of community-control violation and to vacate community control. Upon review of the record, we find that neither the trial court’s decision denying his motion nor the magistrate’s sentencing entry imposing community control was a final, appealable order. Accordingly, Pennington’s appeal is dismissed for lack of a final, appealable order.
I
{¶ 2} On April 30, 2008, Jason Pennington, acting without counsel, pleaded guilty to petty theft, a first-degree misdemeanor, before a magistrate in the Dayton Municipal Court. The magistrate sentenced him to 180 days in jail, all of which was suspended. Pennington was ordered to complete one year of community control, which was conditioned on his completion of a theft clinic and payment of a fine of $150, restitution of $93.80, and court costs. The same day, the magistrate filed a “judgment entry,” indicating that Pennington had pleaded guilty to petty theft and setting forth her recommended sentence; this entry was signed on a line for the magistrate’s signature; there was no line for a judge’s signature. Simultaneously, the magistrate filed a “sentencing entry,” which set forth the same findings and sentence. The sentencing entry was signed by the magistrate on a line for the judge’s signature, and her name was listed in the caption as the judge. Pennington did not file objections to the magistrate’s recommended sentence. Nothing in the record demonstrates that the magistrate’s sentencing entry was adopted by a judge or that the trial court entered a different judgment of conviction in Pennington’s case.
{¶ 4} After receiving the notice, Pennington obtained counsel through the Public Defender’s Office and moved to dismiss the notice of violation and to vacate the order placing him on community control. Pennington argued that the magistrate had failed to obtain a valid waiver of counsel at his plea hearing and, thus, the magistrate had no authority to place him on community control and could not now revoke his community control.
{¶ 5} Although not reflected in the record, Pennington states that his motion was orally denied on February 6, 2009. The docket contains a handwritten notation initialed by the magistrate, also dated February 6, 2009, that says that the motion to dismiss and vacate community control “is denied - Def. was properly advised of his rts at arraignment.” This notation was not adopted by a trial judge, and the page on which the notation was written was not filed.
{¶ 6} Pennington moved to stay all proceedings, including community control, pending an appeal; the motion to stay was granted by the magistrate. There is no indication that the judge reviewed or adopted the magistrate’s order. Subsequently, on March 11, 2009, the magistrate signed an entry denying Pennington’s motion to dismiss notice of community control and to vacate community control; five days later, a trial judge signed the entry and adopted the magistrate’s decision. The entry was filed with the clerk of courts on March 17, 2009. Pennington did not file objections to the magistrate’s decision.
{¶ 7} Pennington appeals from the March 17, 2009, order, denying his motion to dismiss the notice of community-control violation and to vacate community control.
II
{¶ 8} Pennington’s sole assignment of error states:
{¶ 9} “The magistrate below had no authority to proceed against appellant for violating community control, because the magistrate’s original sentencing entry that placed appellant on community control had never been properly adopted by the court.”
{¶ 11} The state responds that Pennington’s appeal is “plagued with several procedural errors.” First, the state notes that Pennington is raising for the first time on appeal that the trial court did not adopt the magistrate’s sentencing decision. The state notes that Pennington appears to have abandoned his argument before the trial court that his plea was ineffective because he did not validly waive his right to counsel. Second, even accepting for the sake of argument that Pennington never “suffered a conviction,” the state asserts that his remedy is to seek a revised sentencing entry from the trial court, not an appeal. Third, the state asserts that Pennington waived any objection to the legal effect of the magistrate’s decisions, because he failed to file any objections with the trial court. Finally, the state claims that the trial court did, in fact, adopt the magistrate’s April 30, 2008 sentencing decision and, therefore, the magistrate had authority to initiate a community-control-violation hearing against him.
(¶ 12}
{¶ 14} A magistrate’s decision is not effective unless it has been adopted by the court.
{¶ 15} The Ohio Constitution limits an appellate court’s jurisdiction to the review of final judgments or orders of lower courts. Section 3(B)(2), Article IV, Ohio Constitution; State v. Lewis, Lorain App. No. 08 CA 9379,
{¶ 16} The magistrate accepted Pennington’s guilty plea and sentenced him on April 30, 2008. Until the trial court adopts this decision and enters judgment, however, the magistrate’s decision was merely an interlocutory recommendation, and it did not constitute a final, appealable order in Pennington’s case. The record does not contain any judgment entry by a trial judge.
{¶ 17} The state asserts that the magistrate’s recommended sentence in Pennington’s case was adopted by the trial court in an “Administrative Order Confirming Recommended Penalties,” signed by the Dayton Municipal Court’s Administrative Judge and filed on October 20, 2009. That order — which is not part of the record in Pennington’s case, but was attached to the state’s brief— confirmed the findings and penalties recommended by the “duly appointed Magistrate” for all misdemeanor criminal cases “during the week commencing
{¶ 18} Under
{¶ 19} Although Pennington’s case would fall within the time period referenced in the administrative order, the administrative order fails to comply with the requirements set forth in
{¶ 20} Morever, an administrative order is not the proper vehicle for entering a judgment of conviction. Under Sup.R. 4(B), an administrative judge “shall have full responsibility and control over the administration, docket, and calendar of the court or division and shall be responsible to the Chief Justice of the Supreme Court in the discharge of the administrative judge’s duties, for the observance of these rules, and for the termination of all cases in the court or division without undue delay and in accordance with the time guidelines set forth in Sup.R. 39.” The administrative judge’s duties include assigning cases to individual judges or, in municipal and county courts, to particular sessions, pursuant to Sup.R. 36, requesting the assignment of visiting judges, developing accounting and auditing systems, administering personnel policies, filing required administrative judge reports, and performing “any other duties in furtherance of the responsibilities of the administrative judge.” Loc.R. 1.1 of the Dayton Municipal Court concerning the administrative judge, follows Sup.R. 4.
{¶ 22} In addition, we note that a municipal court judge other than the administrative judge had previously adopted the magistrate’s decision denying Pennington’s motion to dismiss the notice of violation and to vacate community control. To the extent that Pennington’s case had been assigned to a specific judge, the assigned judge was “primarily responsible for the determination of every issue and proceeding in the case until its termination” and “all preliminary matters” are to be submitted to the assigned judge for disposition. Sup.R. 36(B)(1). Although the administrative judge may dispose of preliminary matters if the assigned judge is unavailable, id., the case had apparently been assigned to a specific judge and the adoption of a magistrate’s recommended sentence and the entry of a final judgment in a criminal matter is not a “preliminary matter.” For all of these reasons, we conclude that the administrative order did not constitute a valid final judgment within the meaning of
{¶ 23} Even assuming that the administrative order constituted a judgment of conviction in Pennington’s case, the administrative order was filed on October 20, 2009, seven months after Pennington filed his notice of appeal and shortly after Pennington had filed his appellant’s brief, in which he argued that no final judgment had been entered. Under these circumstances, we would be hard-pressed to construe Pennington’s appeal as a premature appeal of the judgment of conviction, pursuant to
{¶ 24} As for the trial court’s denial of Pennington’s motion to dismiss the community-control violation and to vacate community control, we also conclude that the trial court’s decision is not a final, appealable order.
{¶ 25}
{¶ 26} “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:
(¶ 27} “(1) An order that affects a substantial right in an action that in effect determines the action and prevents a judgment;
{¶ 28} “(2) An order that affects a substantial right made in a special proceeding or upon a summary application in an action after judgment;
{¶ 29} “(3) An order that vacates or sets aside a judgment or grants a new trial;
{¶ 30} “(4) An order that grants or denies a provisional remedy and to which both of the following apply:
{¶ 31} “(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.
{¶ 32} “(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.”
{¶ 33} In general, the denial of a motion to dismiss is not a final, appealable order. See Wenzel v. Enright (1993),
{¶ 34} In one portion of his motion, Pennington sought to dismiss the notice of community-control violation. According to the record, no community-control-violation hearing has been held on the alleged violation and he has not been found to have violated his community control. To the contrary, the magistrate “ordered” that the proceedings be stayed pending appeal. Consequently, Pennington’s substantial rights have not been affected by the trial court’s denial of his motion to dismiss the community-control-violation charge; Pennington’s rights could have been adequately protected following a final judgment on the revocation proceedings. The denial of Pennington’s motion to dismiss is not ripe for review.
{¶ 35} Pennington’s motion also sought “to vacate the Court’s order placing [him] on Community Control.” Because the trial court had not adopted the magistrate’s recommended sentence at the time Pennington filed his motion, Pennington’s motion to vacate could be more properly construed as belated objections to the magistrate’s sentencing entry. By the same token, the trial court’s denial of his motion could be construed as a decision overruling Pennington’s objections. Nevertheless, in the absence of a final judgment of conviction imposed pursuant to
{¶ 36} Accordingly, we find that no final, appealable order exists in this case.
{¶ 37} Even if it were a final, appealable order, the trial court’s denial of Pennington’s motion to dismiss and to vacate community control would constitute plain error.
{¶ 38} None of this decision should “diminish the standing of magistrates.” Quick v. Kwiatkowski (Aug. 3, 2001), Montgomery App. No. 18620,
{¶ 39} Finally, although Pennington’s appeal was not ripe, he was not without recourse. Pennington could have filed a motion with the trial court, asking the court to enter a final judgment. In the event the trial court denied that motion, Pennington could have proceeded to compel the court to act by filing a petition
Ill
{¶ 40} Pennington’s appeal will be dismissed for want of a final, appealable order.
Appeal dismissed.
Notes
. We note that the state's statement in its brief that "Pennington erroneously claims that the lower court did not adopt the magistrate's decision” is misleading at best. Even accepting the state's legal argument, which we reject infra, Pennington’s claim was made in his October 1, 2009 appellant's brief, and the administrative order, which the state contends belies the claim, was not filed until October 20, 2009, more than two weeks later. Not only was Pennington's claim not erroneous, it may have given rise to the subsequent administrative order.
. The state accurately points out that Pennington failed to object to the magistrate's sentencing decision and to her decision denying his motion to dismiss the community-control violation and to vacate community control. Pennington also raises, for the first time on appeal, a new basis for granting his motion.