[Cite as State v. Dudley,
2014-Ohio-430.]
COURT OF APPEALS
ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. William B. Hoffman, P.J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
-vs- :
: Case No. 13-COA-016
:
LARRY W. DUDLEY, JR. :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Ashland County Court
of Common Pleas, Case No. 13-CRI-
024
JUDGMENT: APPEAL DISMISSED
DATE OF JUDGMENT ENTRY: January 15, 2014
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
RAMONA J. ROGERS ERIN N. POPLAR
ASHLAND CO. PROSECUTOR 103 Milan Ave., Suite 6
PAUL T. LANGE Amherst, OH 44001
110 Cottage Street, Third Floor
Ashland, OH 44805
Ashland County, Case No.13-COA-016 2
Delaney, J.
{¶1} Appellant Larry W. Dudley, Jr. appeals from the May 16, 2013 Judgment
Entry – Sentencing of the Ashland County Court of Common Pleas. Appellee is the
state of Ohio. This case is related to but not consolidated with State v. Dudley, 5th Dist.
Ashland No. 13-COA-017.
FACTS AND PROCEDURAL HISTORY
{¶2} A statement of the facts underlying appellant's original conviction is
unnecessary to our disposition of this appeal.
{¶3} Appellant was charged and ultimately entered pleas of no contest to the
following charges in two separate criminal cases:
Case No. Count Offense Revised Code Degree Sentence
No. Section
12-CRI- I Burglary 2911.12(A)(3) F3 30 months
1311
12-CRI- III Burglary 2911.12(A)(3) F3 30 months
1311
12-CRI- IV Burglary 2911.12(A)(3) F3 30 months
1311
13-CRI-024 I B&E 2911.13(A) F5 12 months
13-CRI-024 II Theft 2913.02(A)(1) M1 90 days
13-CRI-024 III Theft 2913.02(A)(1) M1 90 days
13-CRI-024 IV B&E 2911.13(A) F5 12 months
13-CRI-024 V Theft 2913.02(A)(1) M1 90 days
13-CRI-024 VI B&E 2911.13(A) F5 12 months
13-CRI-024 VII Theft 2913.02(A)(1) M1 90 days
13-CRI-024 VIII Theft 2913.02(A)(1) F5 12 months
from
elderly
person
{¶4} After appellant changed his pleas and prior to entering sentences, the trial
court ordered a presentence investigation (P.S.I.) which has been made part of the
record on appeal. The lengthy P.S.I. indicates appellant engaged in a series of thefts
Ashland County, Case No.13-COA-016 3
and burglaries with a cohort to support a serious drug habit. Appellant has an extensive
criminal history of similar offenses.
{¶5} In this case, the trial court found consecutive sentences are necessary to
protect the public from future crimes and to punish the offender and are not
disproportionate to the seriousness of appellant’s conduct. The felony sentences were
therefore ordered to be served consecutively for an aggregate prison term of eleven and
a half years. (The misdemeanor sentences were ordered to be served concurrently.)
{¶6} As the trial court sentenced appellant to prison, appellant cursed and
threatened the trial judge. Appellant was therefore removed from the courtroom and
sentencing continued.
{¶7} Restitution was a significant issue at sentencing. Items stolen by
appellant included copper pipe from a house, the removal of which caused flooding and
significant damage. Appellee reported a restitution amount of $89,000 for that victim,
although the victim had not yet presented any documentation. At sentencing, after
appellant’s removal from the courtroom, the trial court stated the following regarding
restitution:
….
I am assessing the Court costs in this matter including the $30 fee
required pursuant to Section 2949.041 and the $30 fee required
pursuant to Section 2743.70, and the $25 fee required to Section
120.36. I am further Ordering that [appellant] pay restitution to
Heather Harrison in the amount of $2,578, that he pay restitution to
Phillip Lininger in the amount of $500, that he pay restitution to
Ashland County, Case No.13-COA-016 4
Jerry Smith in the amount of $900, and that he pay restitution to
Teresa Stackhouse in the amount of $87,500, although I do
want to make that Order subject to some documentation either
in the form of a settlement or what have you, that provides the
Court with a little more verification that in fact was the amount,
the $89,000 was the amount of the insurance claim. (Emphasis
added.)
….
{¶8} The resulting Judgment Entry – Sentencing of the trial court filed May 16,
2013 states the following regarding restitution:
The Defendant is ORDERED to make restitution in the amount of
Five Hundred Dollars ($500.00) to Phillip Leininger; Nine Hundred
Dollars ($900.00) to Jerry Smith; Eighty-Seven Thousand Five
Hundred Dollars ($87,500.00) to Theresa Stackhouse, the victims
in this case. In regards to the restitution order for Theresa
Stackhouse, the Court’s restitution order is being issued
subject to the Court receiving written documentation in
support of the amount of restitution ordered. If the Court does
not receive written documentation from Ms. Stackhouse, the
Court may set aside the restitution order for her. (Emphasis
added.)
{¶9} Appellant now appeals from the judgment entry of conviction and
sentence entered by the trial court on May 16, 2013.
Ashland County, Case No.13-COA-016 5
{¶10} Appellant raises five assignments of error:
ASSIGNMENTS OF ERROR
{¶11} “I. THE TRIAL COURT ERRED WHEN IT IMPOSED PRISON
SENTENCES FOR FOUR FIFTH DEGREE FELONIES WITHOUT MAKING A
SPECIFIC FINDING THAT ANY FACTOR CONTAINED IN OHIO REVISED CODE
2929.13(B)(1)(b) APPLY (sic) RELATIVE TO APPELLANT.”
{¶12} “II. THE TRIAL COURT ERRED WHEN IT IMPOSED CONSECUTIVE
12-MONTH SENTENCES FOR FOUR FIFTH DEGREE FELONY CONVICTIONS
SUCH THAT THE AGGREGATE SENTENCE EXCEEDED THE MAXIMUM PRISON
TERM ALLOWED BY OHIO REVISED CODE 2929.14(A) FOR THE MOST SERIOUS
OFFENSE OF WHICH THE APPELLANT WAS CONVICTED, 12 MONTHS.”
{¶13} “III. THE TRIAL COURT ERRED TO (sic) ORDERING APPELLANT TO
PAY MORE THAN $90,000.00 IN RESTITUTION WITHOUT SUPPORTING
DOCUMENTATION, OUTSIDE OF APPELLANT’S PRESENCE AND IN AN
UNDETERMINED AMOUNT.”
{¶14} “IV. IN THE ALTERNATIVE, APPELLANT WAS DENIED EFFECTIVE
ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I,
SECTION 10 OF THE OHIO CONSTITUTION BECAUSE HIS COUNSEL DID NOT
DISPUTES (sic) RESTITUTION AMOUNTS OR REQUEST A HEARING ON
RESTITUTION.”
{¶15} “V. THE TRIAL COURT ERRED IN ORDERING MAXIMUM
CONSECUTIVE PRISON SENTENCES FOR FIFTH DEGREE FELONIES AS THE
Ashland County, Case No.13-COA-016 6
IMPOSITION OF SUCH SENTENCES PLACES AN UNNECESSARY BURDEN ON
STATE RESOURCES.”
ANALYSIS
I., II., III., IV., V.
{¶16} As an initial matter, we must address whether the judgment entry of May
16, 2013 constitutes a final appealable order in light of the indefinite restitution order
For the following reasons, we find it does not, and therefore we dismiss the within
appeal for lack of a final appealable order.
{¶17} The Ohio Supreme Court has recognized “the determination of restitution
entails a substantive legal decision or judgment and is not merely a mechanical part of a
judgment.” State v. Miller, 127 Ohio St.3d 407, 2010–Ohio–5705,
940 N.E.2d 924, ¶ 16.
Generally, as the Court held at the syllabus in State v. Danison,
105 Ohio St.3d 127,
2005–Ohio–781, 823 N.E .2d 444, “[a]n order of restitution imposed by the sentencing
court on an offender for a felony is part of the sentence and, as such, is a final and
appealable order.”
{¶18} Where a judgment entry does not settle either the amount of restitution or
the method of payment, however, it is not a final appealable order. State v. Kuhn, 3rd
Dist. Defiance No. 4–05–23, 2006–Ohio–1145, ¶ 8; In re Zakov, 107 Ohio App.3d 716,
718,
669 N.E.2d 344 (11th Dist.1995); In re Holmes,
70 Ohio App.2d 75, 77,
434 N.E.2d
747 (1st Dist.1980). In this case, a significant order of restitution is dependent upon one
victim submitting proof of her insurance claim or other documentation satisfactory to the
trial court.
Ashland County, Case No.13-COA-016 7
{¶19} We note the record is silent as to whether any party has requested a
hearing to finalize this restitution amount.
{¶20} The May 16, 2013 entry thus lacks a complete sentence and is merely
interlocutory. State v. Riggs, 5th Dist. Licking No. 2009 CA 00041, 2009-Ohio-6821, fn
2. Accordingly, we find there is no final appealable order in this case.
{¶21} Appellant’s appeal is therefore dismissed.
CONCLUSION
{¶22} For the foregoing reasons, this appeal is dismissed for lack of a final
appealable order.
By: Delaney, J. and
Hoffman, P.J.
Baldwin, J., concur.
