2019 OHIO 4576 - Parma v. Greyssa

[Cite as Parma v. Greyssa,

2019-Ohio-4576

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

CITY OF PARMA, :

Plaintiff-Appellee, :
No. 108032
v. :

MOHAMED GREYSSA, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: DISMISSED
RELEASED AND JOURNALIZED: November 7, 2019

Criminal Appeal from the Parma Municipal Court
Case No. 18-TRC-01845

Appearances:

John J. Spellacy, for appellee.

William B. Norman, for appellant.

EILEEN A. GALLAGHER, J.:

Defendant-appellant Mohamed Greyssa filed a notice of appeal of the

denial of his motion to suppress evidence. However, for the reasons that follow, we

dismiss his appeal for lack of a final, appealable order.

Greyssa was charged with operating a vehicle under the influence

(“OVI”) in violation of R.C. 4511.19(A)(1)(a) and refusal of test in violation of R.C.
4511.19(A)(2). Greyssa pled not guilty to the charges and filed a motion to suppress

evidence. A magistrate held an evidentiary hearing on the motion to suppress.

Following the hearing, the magistrate issued a “judgment entry” denying the motion

to suppress.1 Greyssa filed objections to the magistrate’s decision.2 The trial judge

did not rule on Greyssa’s objections or adopt, reject or modify the magistrate’s

decision.

Greyssa thereafter pled no contest to the OVI count in exchange for

the dismissal of the remaining count. Because it was Greyssa’s third OVI offense in

six years, he faced a potential jail sentence of up to one year. See R.C.

4511.19(G)(1)(c). A magistrate conducted the change-of-plea hearing, accepted

Greyssa’s no contest plea and found him guilty. However, there is no indication in

the record that the magistrate informed Greyssa of the effect of his plea prior to

1 Although the magistrate did not caption his ruling a “magistrate’s decision,”
because it was issued after an evidentiary hearing the magistrate presided over, set forth
facts and law, applied the facts to the law, and then reached a determination, it is properly
regarded as a magistrate’s decision. See, e.g., In re J.B.,

2017-Ohio-293

81 N.E.3d 953

,
¶ 18 (8th Dist.); State v. J.A.C., 12th Dist. Warren Nos. CA2017-04-044 and CA2017-04-
045,

2018-Ohio-361, ¶ 10, fn. 2

; see also Crim.R. 19(D)(2)(a)(i) (“Subject to the terms of
the relevant reference, a magistrate may enter pretrial orders without judicial approval if
necessary to regulate the proceedings and if not dispositive of a claim or defense of a
party.”) (Emphasis added.); State v. Weierman, 2d Dist. Montgomery No. 18853,

2001 Ohio App. LEXIS 5613

, 5 (Dec. 14, 2001) (“[A] magistrate cannot enter an order on a
suppression motion without judicial approval. [I]f a case is first properly referred, the
magistrate must file a decision, which is then subject to judicial approval.”).

2The copy of the objections in the record is incomplete and contains only the first
page of Greyssa’s objections. Accordingly, we do not know what objections were raised
below.
accepting his no contest plea. See Crim.R. 11(D); Traf.R. 10(C). The magistrate

sentenced Greyssa. However, no trial judge adopted the magistrate’s sentence.

Greyssa appealed the magistrate’s sentencing judgment entry, raising

the following three assignments of error for review:

I. The trial court erred in denying appellant’s motion to suppress
where police lacked authority and cause to seize appellant as he
sat in his parked vehicle with the engine turned off.

II. The trial court erred in denying appellant’s motion to suppress
field sobriety tests where field testing was not conducted in
substantial compliance with NHTSA standards.

III. The trial court erred in denying appellant’s motion to suppress
evidence obtained after appellant’s unlawful arrest.

Following a thorough review of the record, we conclude that we are

unable to address the merits of this appeal because the trial judge failed to adopt the

sentence imposed by the magistrate and enter it as a judgment of the court.

Accordingly, there is no valid sentence and no final, appealable order. See, e.g.,

Berea v. Collins, 8th Dist. Cuyahoga No. 99406,

2013-Ohio-4191, ¶ 2-5

.

               A magistrate can accept pleas, make findings of guilt or innocence,

and recommend a penalty in a misdemeanor case. See Crim.R. 19(C)(1)(c)(ii) (“To

assist courts of record and pursuant to reference under Crim.R. 19(D)(1),

magistrates are authorized, subject to the terms of the relevant reference, to …

[i]n misdemeanor cases, accept and enter guilty and no contest pleas, determine

guilt or innocence, receive statements in explanation and in mitigation of sentence,

and recommend a penalty to be imposed.”); Traf.R. 14(A) (“A court may appoint one
or more magistrates for the purpose of receiving pleas, determining guilt or

innocence, receiving statements in explanation and in mitigation of sentence, and

recommending penalty to be imposed.”). If imprisonment is a possible penalty for

the offense charged, the matter may be referred to a magistrate “only with the

unanimous consent of the parties, in writing or on the record in open court.”

Crim.R. 19(C)(1)(c)(ii); Traf.R. 14(B). There is nothing in the record that indicates

that the parties consented to referral to the magistrate.

               Even if the parties had agreed to have the magistrate sentence

Greyssa, the magistrate could recommend a sentence, but that sentence would not

be final until adopted by the trial court and set forth in a judgment. See, e.g., Collins

at ¶ 2-5; Middleburg Hts. v. Elsing, 8th Dist. Cuyahoga No. 104116,

2016-Ohio-7051, ¶ 6-9, 13

; see also State v. Pennington,

187 Ohio App.3d 526

2010-Ohio-2139

932 N.E.2d 941, ¶ 12-16

 (2d Dist.); Youngstown v. Waselich, 7th Dist. Mahoning No. 04

MA 164,

2005-Ohio-6449, ¶ 6-9

.

               As this court explained in Collins:

             Crim.R. 19(C)(1)(c)(ii) permits a magistrate in a misdemeanor
      case to “accept and enter guilty and no contest pleas, determine guilt or
      innocence, receive statements in explanation and in mitigation of
      sentence, and recommend a penalty to be imposed.” (Emphasis
      added.) That the magistrate only issues a “recommendation” of a
      penalty to be imposed is reinforced not only by Crim.R. 19(D)(4)(a)
      which states that “[a] magistrate’s decision is not effective unless
      adopted by the court[,]” but by Crim.R. 32(C), which states that a
      criminal judgment must set forth “the sentence” and “that the judge
      shall sign the judgment.”

      …
         The judge did not adopt the magistrate’s recommendation on
         sentencing, so there is no final judgment of conviction that conforms to
         Crim.R. 32.

                With no sentence having been adopted and reduced to judgment
         with the judge’s signature, there was no final order of conviction. See
         State v. Baker,

119 Ohio St.3d 197

2008-Ohio-3330

893 N.E.2d 163

,
         syllabus (“A judgment of conviction is a final appealable order under
         R.C. 2505.02 when it sets forth (1) the guilty plea, the jury verdict, or
         the finding of the court upon which the conviction is based; (2) the
         sentence; (3) the signature of the judge; and (4) entry on the journal by
         the clerk of court.”). We therefore lack jurisdiction to hear this appeal.

2013-Ohio-4191, ¶ 3-5

.

                 Accordingly, this appeal is dismissed for lack of a final, appealable

order.

         It is ordered that appellee recover from appellant the costs herein taxed.

         A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.



EILEEN A. GALLAGHER, JUDGE

FRANK D. CELEBREZZE, JR., P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR