State v. Williams, 06 Ca 008927 (4-23-2007)State v. Williams, 06 Ca 008927 (4-23-2007)
This cause was heard upon the record in the trial court and the following disposition is made: {¶ 1} Defendant, Erica Williams, appeals her sentence in the Lorain County Court of Common Pleas on three different counts arising from a traffic
{¶ 2} On July 23, 2003, Defendant proceeded into the path of an oncoming police cruiser that was in pursuit of another vehicle. The cruiser had lights and siren activated at the time of the accident. Defendant was indicted by the grand jury on three counts: failure to yield to an emergency vehicle in violation of
{¶ 3} Defendant now appeals this sentence and raises one assignment of error for this court‘s review:
FIRST ASSIGNMENT OF ERROR
“The trial court acted contrary to law by imposing a more-than-minimum sentence upon [Defendant] without reference to the sentencing factors required by the sentencing statute in effect at the time of the incident that brought rise to the charges and at the time of [Defendant‘s] `no contest’ plea.”
{¶ 4} Defendant challenges her sentence as being an unconstitutional violation of the prohibition of ex post facto enforcement of judicial decisions. However, we do not reach Defendant‘s argument because the trial court has not
{¶ 5} This court recently decided State v. Miller, 9th Dist. No. 06CA0046-M, 2007-Ohio-1353, in which it clearly enumerated the elements of
{¶ 6} “We are obligated to raise sua sponte questions related to our jurisdiction. Whitaker-Merrell Co. v. Geupel Constr. Co. (1972), 29 Ohio St.2d 184, 186. We find that the trial court‘s judgment entry fails to satisfy the requirements of
{¶ 7}
“A judgment of conviction shall set forth the plea, the verdict or findings, and the sentence. * * * The judge shall sign the judgment entry and the clerk shall enter it on the journal. A judgment is effective only when entered on the journal by the clerk.”
{¶ 8} This Court observed in Miller that
2. the verdict or findings;
3. the sentence;
4. the signature of the judge; and
5. the time stamp of the clerk to indicate journalization. See Miller at ¶ 5.
{¶ 9} Our holding in Miller overruled the holding in State v. Morrison (Apr. 1, 1992), 9th Dist. No. 2047. See Miller at ¶ 10. The holding in Morrison was narrow, and was limited by the facts before the Court. While the sentencing entry in Morrison indicated that the defendant had been found guilty after a trial, it failed to include the defendant‘s plea. However, the Court found that the record contained defendant‘s written plea of not guilty entered earlier in the proceedings. It further found that the defendant‘s plea was implicit in the sentencing entry, which indicated that the defendant had received a jury trial and was found guilty. Although
{¶ 10} Miller overruled the Morrison decision to infer a not guilty plea in the case of a trial, and required strict compliance with all elements of
“For judgment entries entered after this decision is journalized, this Court will not search the record to determine what plea the defendant entered. The trial court‘s judgment entry must comply fully with
Crim.R. 32(C) by setting forth the defendant‘s plea of not guilty, guilty, no contest, or not guilty by reason of insanity.” Miller at ¶ 10.
{¶ 11} The judgment entry in the instant case indicates that Defendant “appeared in court for sentencing after having plead guilty to” the charges for which she was ultimately sentenced. This is an incorrect record of Defendant‘s plea. The transcript of Defendant‘s plea hearing clearly indicates that Defendant pled no contest. However, because this judgment entry was journalized before this Court‘s decision in Miller, we do not dispose of this appeal on that basis, and we proceed to consider the sentencing entry‘s inclusion of the verdict or findings as required by
{¶ 12} The second element of a judgment entry under
“Following either a jury trial or a bench trial, the trial court must set forth the verdict in the judgment entry. The verdict is the `jury‘s finding or decision on the factual issues of a case.’ State v. Lomax, 96 Ohio St.3d 318, 2002-Ohio-4453, ¶ 23. In the case of a plea of guilty or no contest, the trial court must enter its finding on the plea.” Miller at ¶ 11.
{¶ 13} The judgment entry in this case does not contain any finding by the court after Defendant‘s plea. As indicated above, the form includes the phrase
{¶ 14} Moreover, this Court held in Miller that “in the context of a guilty or no contest plea, it is also not sufficient for the trial court to note only that it accepted the defendant‘s plea. The trial court must enter a finding of guilt to comply with
{¶ 15} We also note that the Miller decision included a footnote that read as follows:
“Trial courts that utilize a form judgment entry must be certain that the form complies with this decision. The form must reflect the plea, the verdict or findings, the sentence, and the judge‘s signature. When that form is journalized by the clerk, it will comply with
Crim.R. 32(C) ” Miller, FN 1.
The trial court in this case used a form entry that does not comply with
{¶ 16} In addition to the plea and the verdict or findings,
{¶ 17} The final element to be contained in a judgment entry according to
{¶ 18}
{¶ 19} A common-sense approach to analyzing our jurisdiction has appeal. Such an approach, however, is at odds with the plain language of Crim.R. 32. “[A] court may not add words to an unambiguous [rule], but must apply the [rule] as written.” State v. Lowe, 112 Ohio St.3d 507, 2007-Ohio-606, at ¶ 15, citing Portage Cty. Bd. of Commrs., 109 Ohio St.3d 106, 2006-Ohio-954, at ¶ 52. As appealing as a common sense approach may be, we are prohibited by the rules of interpretation from utilizing any meaning other than that meaning which is conveyed by the unambiguous language of Crim.R. 32. Moreover, every appellate
{¶ 20} We do not find that Crim.R. 32 is in conflict with
Undoubtedly, it is these types of decisions which have resulted in the Supreme Court referring to this area of law as “the morass of the final-and-appealable-order statute.” Gehm v. Timberline Post Frame, 112 Ohio St.3d 514, 2007-Ohio-607, at ¶ 7. However, we are a Court of limited jurisdiction and must abide by the limits which have been set forth.
{¶ 21} Because the trial court‘s judgment entry fails to comply with
“We encourage the trial court to enter a judgment entry as soon as possible that complies with
Crim.R. 32(C) . After the trial court files that entry, if Defendant desires to appeal, [she] must file a new notice of appeal. The parties may then move this Court to transfer the record from this appeal to the new appeal and to submit the matter on the same briefs as were filed in this case and we will consider the appeal in an expedited fashion. See, e.g., Sandlin, n. 4.” Miller at ¶ 20.
Appeal dismissed.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
Costs taxed to Appellant.
MOORE, J., CONCURS
DICKINSON, J., CONCURS, SAYING:
{¶ 22} I concur with the majority‘s dismissal of this appeal. Although the defendant pleaded no-contest, the trial court‘s judgment did not include a finding that she was guilty and, therefore, was not a final, appealable order. I write separately to note that, although State v. Miller, 9th Dist. No. 06CA0046-M, 2007-Ohio-1353 sets forth the law in this district, I disagree with its reasoning.
{¶ 23}
{¶ 24}
A judgment of conviction shall set forth the plea, the verdict or findings, and the sentence. If the defendant is found not guilty or for any other reason is entitled to be discharged, the court shall render judgment accordingly. The judge shall sign the judgment and the clerk shall enter it on the journal. A judgment is effective only when entered on the journal by the clerk.
In Miller, this Court concluded that
1. the plea;
2. the verdict or findings;
3. the sentence;
4. the signature of the judge; and
5. the time stamp of the clerk to indicate journalization.
{¶ 25} I do not believe
{¶ 26} I acknowledge that the placement of the commas in the rule supports the Court‘s reading in Miller rather than mine. I believe, however, that the phrase
{¶ 27} The problem with reading
{¶ 28}
The supreme court shall prescribe rules governing practice and procedure in all courts of the state, which rules shall not abridge, enlarge, or modify any substantive right. . . . All laws in conflict
with such rules shall be of no further force or effect after such rules have taken effect.
In Morgan v. Western Elec. Co. Inc., 69 Ohio St. 2d 278, 284 n. 11 (1982), the Ohio Supreme Court wrote that
This constitutional amendment recognizes that where conflicts arise between the Civil Rules or Appellate Rules and the statutory law, the rule will control the statute on matters of procedure and the statute will control the rule on matters of substantive law.
There can be no doubt that, in defining the types of orders courts of appeals have jurisdiction to review,
If the statute is jurisdictional, it is a substantive law of this state, and cannot be abridged, enlarged, or modified by the Ohio Rules of Civil Procedure.
City of Akron v. Gay, 47 Ohio St. 2d 164, 165-166 (1976). If
{¶ 29} In this case, the trial court‘s judgment is non-final because the defendant pleaded no-contest and the trial court failed to find her guilty. Accordingly, I concur in the dismissal of this appeal.