State v. SlackState v. Slack
PER CURIAM:
{¶ 1} This matter is before the court on the State of Ohio’s motion to dismiss. The State asserts that the order on appeal, a September 11, 2020 “Decision and Order of Intervention in Lieu of Conviction,” is not a final appealable order. Appellant, Jennifer Slack, argues that the appeal should proceed. We dismiss.
{¶ 2} An appellate court has jurisdiction to review only final orders or judgments of the lower courts in its district.
{¶ 3}
Crim.R. 32(C) lists the requirements for a valid final judgment in a criminal case. It provides that a judgment must set forth the fact of the conviction, the sentence, the judge’s signature, and the time stamp indicating that the clerk entered the judgment in the journal. We have said that such a judgment “is a final order subject to appeal underR.C. 2505.02 .” State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142, ¶ 1.
(Emphasis added.) State v. Gilbert, 143 Ohio St.3d 150, 2014-Ohio-4562, 35 N.E.3d 493, ¶ 8. Although the sentencing entry is generally the final order in a criminal case, “some other orders may be considered final and appealable before a [criminal] case has been resolved where the order satisfies one of the statutory definitions.” State v. Glynn, 2d Dist. Montgomery No. 28824, 2020-Ohio-7031, ¶ 4, citing State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, 935 N.E.2d 9, ¶ 8. One notable exception is an order denying a motion to dismiss on double-jeopardy grounds. See State v. Anderson, 138 Ohio St.3d 264, 2014-Ohio-542, 6 N.E.3d 23.
{¶ 5} Consequently, this court and others have held that a decision granting ILC is not a final appealable order. See, e.g., State v. Hightower-Goins, 2d Dist. Montgomery No. 28744 (Oct. 7, 2020); State v. Woods, 2d Dist. Montgomery No. 28479 (Sep. 24, 2019); State v. Lewis, 2d Dist. Champaign No. 2016-CA-29, 2017-Ohio-8604, ¶ 3-7; State v. Dempsey, 8th Dist. Cuyahoga No. 82154, 2003-Ohio-2579, ¶ 9; State v. Bellman, 9th Dist. Lorain No. 15CA010525, 2015-Ohio-2303, ¶ 10.
{¶ 6} Another section of the statute defining final orders permits an appeal from an “order that affects a substantial right made in a special proceeding1 or upon a summary
application in an action after judgment.”
{¶ 8} Decisions denying ILC are routinely reviewed on direct appeal from a conviction and sentence. See, e.g., State v. Nealeigh, 2d Dist. Champaign No. 2010CA28, 2011-Ohio-1416; Rice, 180 Ohio App.3d 599, 2009-Ohio-162, 906 N.E.2d 506 (2d Dist.); State v. Schmidt, 149 Ohio App.3d 89, 2002-Ohio-3923, 776 N.E.2d 113 (2d Dist.); State v. Fullenkamp, 2d Dist. Darke No. 2001CA1543, 2001 WL 1295372 (Oct. 26, 2001); State v.
{¶ 9} But, orders granting ILC (or most often, challenging the terms of an intervention plan) have generally been deemed not appealable by the defendant under
{¶ 11} We first note that the Welden court did not address the finality of an order granting ILC. The defendant in Welden was granted ILC in June 2009, and subsequently, in January 2011, was ordered to pay restitution as a condition of ILC. Id. at ¶ 2-4. The defendant appealed the January 2011 order, rather than the ILC order, and the court heard it without discussing finality.
{¶ 12} In contrast to the Twelfth District’s decision in Welden, the Ninth District has held that a restitution order issued as part of an ILC plan did not satisfy any of the three potentially relevant definitions of a final order in
{¶ 13} The Ninth District dismissed, finding that the order on appeal did not satisfy any of the relevant statutory provisions:
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.
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 criminal proceeding. The trial court’s ordered intervention plan contemplates further judicial action based on Mr. Bellman’s compliance with his intervention
conditions. Thus, we conclude that the trial court’s ordered intervention plan is not a final, appealable order under R.C. 2505.02(B)(1) .Moreover,
R.C. 2505.02(A)(1) defines a substantial right as “a right that the United States Constitution, the Ohio Constitution, a statute, the common law, or a rule of procedure entitles a person to enforce or protect.” It is essentially “a legal right that is enforced and protected by law.” State v. Coffman, 91 Ohio St.3d 125, 127 (2001), citing Cleveland v. Trzebuckowski, 85 Ohio St.3d 524, 526 (1999).
R.C. 2951.041 governs intervention in lieu of conviction and provides that a trial court “may accept, prior to the entry of a guilty plea, the [defendant’s] request for intervention in lieu of conviction” if certain statutory conditions apply. (Emphasis added.)R.C. 2951.041(A)(1) . Much likeR.C. 2929.20 , the statute authorizing judicial release,R.C. 2951.041 is permissive in nature and confers substantial discretion to the trial court to grant a defendant’s request without providing for appellate review. State v. Dempsey, 8th Dist. Cuyahoga No. 82154, 2003-Ohio-2579, ¶ 9, citing Coffman at 127-128. Intervention in lieu of conviction is therefore not a right provided to defendants. Id. (noting that intervention in lieu of conviction is a special opportunity provided to select defendants). As such, we conclude that the trial court’s imposition of a restitution order as part of Mr. Bellman’s intervention plan does not affect a substantial right. Id.; accord Rone v. State, 11th Dist. Ashtabula No. 2005-A-0075, 2006-Ohio-1268, ¶ 5, citing Coffman at 127-128. The trial court’sordered intervention plan is therefore not a final, appealable order under R.C. 2505.02(B)(2) .
Bellman at ¶ 8-10.
{¶ 14} The Bellman court also found that the restitution order did not satisfy the definition of a provisional remedy:
Lastly, as used in
R.C. 2505.02(B)(4) , a provisional remedy is defined as: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 or2307.86 of the Revised Code , a prima-facie showing pursuant tosection 2307.92 of the Revised Code , or a finding made pursuant to division (A)(3) ofsection 2307.93 of the Revised Code .
R.C. 2505.02(A)(3) . Although ancillary is not defined by statute, the Supreme Court of Ohio has defined an ancillary proceeding as “one that is attendant upon or aids another proceeding.” (Internal quotations and citations omitted.) Community First Bank & Trust v. Dafoe, 108 Ohio St.3d 472, 2006-Ohio-1503, ¶ 24. Given this definition, we conclude that intervention in lieu of conviction is not an ancillary proceeding, as it does not aid or further the principal proceeding. See id. at ¶ 31. Unlike a proceeding for a preliminary injunction, whichR.C. 2505.02(B)(4) explicitly lists as an ancillary proceeding, intervention in lieu of conviction is not “a separate matter from the trial on themerits” or “a proceeding with its own life.” Id. at ¶ 30. Therefore, we determine that the trial court’s ordered intervention plan is not a final, appealable order under R.C. 2505.02(B)(4) .
Bellman at ¶ 11.
{¶ 15} In this case, Slack has appealed the September 11 Decision granting her motion for ILC and (among other things) ordering her to pay restitution as a condition thereof. She pled guilty, the trial court “with[held] an adjudication of guilt and order[ed] that all criminal proceedings be stayed.” September 11 Decision. Thus, because there has been no conviction and sentence, or dismissal, the criminal case is not yet complete. See
{¶ 16} We also hold, consistent with the authorities discussed above, that the September 11 Decision does not affect a substantial right and therefore does not satisfy
{¶ 17} The State’s motion to dismiss is SUSTAINED. Slack’s motion to correct the record is OVERRULED as moot. This matter, Montgomery Appellate Case No. 28921, is DISMISSED.
MICHAEL L. TUCKER, Presiding Judge
MICHAEL T. HALL, Judge
JEFFREY M. WELBAUM, Judge
Copies to:
Travis Kane
130 W. Second Street, Suite 460
Dayton, Ohio 45402
Attorney for Appellant
Andrew French
301 W. Third Street, 5th Floor
Dayton, Ohio 45422
Attorney for Appellee
Hon. Dennis J. Adkins
Montgomery County Common Pleas Court
41 N. Perry Street
P.O. Box 972
Dayton, Ohio 45422
CA3/KY