[Cite as State v. DeVore,
2020-Ohio-1131.]
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. Earle E. Wise, Jr., J.
-vsCase No. 19-COA-035
ADAM M. DEVORE
Defendant-Appellant O P I N IO N
CHARACTER OF PROCEEDINGS: Appeal from the Ashland County Court of
Common Pleas, Case No. 17-CRI-002
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 23, 2020
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
CHRISTOPHER R. TUNNELL ADAM M. DEVORE
Ashland County Prosecuting Attorney State I.D. A704-923
Richland Correctional Institute
COLE F. OBERLI P.O. Box 8107
Assistant Prosecuting Attorney 1001 South Olivesburg Road
110 Cottage Street Mansfield, Ohio 44901
Ashland, Ohio 44805
Ashland County, Case No. 19-COA-035 2
Hoffman, P.J.
{¶1} Appellant Adam M. DeVore appeals the judgment entered by the Ashland
County Common Pleas Court overruling his motion for new trial. Appellees is the state
of Ohio.
STATEMENT OF THE CASE1
{¶2} On January 12, 2017, the Ashland County Grand Jury indicted appellant on
one count of rape in violation of R.C. 2907.02(A)(2), one count of abduction in violation
of R.C. 2905.02(A)(2), and one count of domestic violence in violation of R.C. 2919.25(A).
Following jury trial in the Ashland County Common Pleas Court, Appellant was acquitted
of rape, but convicted of abduction and domestic violence. The trial court sentenced
appellant to 36 months in prison on the abduction conviction and to 36 months in prison
on the domestic violence conviction, to be served consecutively to one another for an
aggregate prison sentence of 72 months. In the sentencing entry, the trial court granted
Appellant's motion for return of seized property, specifically, his cell phone which had
been seized for use as part of the State's prosecution. Appellant's motion to reopen his
appeal pursuant to App. R. 26(B) was also denied by this Court on February 6, 2019, and
Appellant appealed our decision to the Ohio Supreme Court.
{¶3} On March 14, 2019, Appellant filed a motion for enforcement of his previous
order requesting his cell phone be returned to him. At the time, Appellant had an active
jurisdictional application to the Ohio Supreme Court on appeal from this Court's denial of
his App. R. 26(B) motion, and the State therefore opposed the motion. The trial court
1 A rendition of the facts is unnecessary for our resolution of the issues raised in this appeal, but can be
found in this Court's opinion on direct appeal of Appellant's conviction and sentence. See State v. Devore,
5th Dist. Ashland No. 18-COA-011, 2018-Ohio-4189.
Ashland County, Case No. 19-COA-035 3
denied Appellant's motion for return of his cell phone on May 7, 2019. The Ohio Supreme
Court denied his jurisdictional appeal of this Court’s denial of his request to reopen his
direct appeal on May 15, 2019.
{¶4} Appellant appealed the May 7, 2019, judgment to this Court. The State
conceded because Appellant had exhausted his appeals, the State had no further
purpose in holding the cell phone, and asked this Court to remand the case to the trial
court. We remanded this case to the trial court by judgment entered September 30, 2019.
Ohio v. Devore, 5th Dist. Ashland No. 19-COA-017, 2019-Ohio-4035, ¶ 8, appeal not
allowed,
158 Ohio St.3d 1409,
2020-Ohio-518, ¶ 8 (2020).
{¶5} On October 22, 2019, the trial court ordered Appellant’s cell phone
released. Appellant filed a motion to vacate the order on October 31, 2019, arguing the
order was premature because his motion to reconsider this Court’s September 30, 2019,
judgment was pending at the time, and further the trial court failed to notify him of where
his property is being held and failed to authorize his housemate to take possession of the
cell phone.
{¶6} The trial court overruled the motion to vacate on November 15, 2019, stating
in pertinent part:
The fact that the Defendant failed to request with whom the property
was to be released to does not warrant said Judgment Entry to be vacated.
The Defendant can make arrangements with the proper law enforcement
agency for the release of the property.
Ashland County, Case No. 19-COA-035 4
{¶7} Judgment Entry, November 15, 2019.
{¶8} It is from the November 15, 2019, judgment of the trial court Appellant
prosecutes his appeal, assigning as error:
THE TRIAL COURT ERRED WHEN IT FAILED TO VACATE A
PREMATURE ORDER THAT IT DID NOT HAVE JURISDICTION TO
ENTER, MADE CLEARLY ERRONEOUS FACTUAL FINDINGS, AND
HOLDING THAT THE DEFENDANT CAN MAKE ARRANGEMENTS WITH
THE PROPER LAW ENFORCEMENT AGENCY FOR THE RELEASE OF
PROPERTY WHICH IS CONTRARY TO LAW.
{¶9} The State argues the cell phone has been released to Appellant’s
housemate, attaching receipts to its brief which reflect the release of the cell phone.
These receipts are not a part of the record, and therefore cannot be considered by this
Court on appeal.
{¶10} However, we find when the judge denied Appellant’s motion to vacate its
prior order on November 15, 2019, the trial court had jurisdiction to order release of the
cell phone, as our judgment overruling his motion for reconsideration was filed November
7, 2019. Appellant has cited no legal authority for the proposition the trial court was
required to make logistical arrangements for the return of Appellant’s property.
Ashland County, Case No. 19-COA-035 5
{¶11} The assignment of error is overruled.
{¶12} The judgment of the Ashland County Common Pleas Court is affirmed.
By: Hoffman, P.J.
Delaney, J. and
Wise, Earle, J. concur
