[Cite as State v. Jackson,
2025-Ohio-322.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
SCIOTO COUNTY
State of Ohio, :
:
Plaintiff-Appellee, : Case No. 23CA4031
:
v. :
: DECISION AND
Walter Jackson, : JUDGMENT ENTRY
:
Defendant-Appellant. :
_____________________________________________________________
APPEARANCES:
Brian T. Goldberg, Cincinnati, Ohio, for Appellant.
Shane A. Tieman, Scioto County Prosecuting Attorney, and Jay Willis, Scioto
County Assistant Prosecuting Attorney, Portsmouth, Ohio, for Appellee.
_____________________________________________________________
Smith, P.J.
{¶1} Appellant, Walter Jackson, appeals the judgment of the Scioto County
Court of Common Pleas convicting him of 12 felony counts, as well as eight
firearm specifications. The record reflects that Jackson was originally indicted on
8 felony counts and then was subsequently indicted under the same case number on
12 felony counts, some of which were different than those contained in the first
indictment, and some of which were the same. He was tried before a jury on only
the 12 counts contained in the second indictment and was ultimately found guilty
of all counts. On appeal, Jackson raises five assignments of error contending that
Scioto App. No. 23CA4031 2
1) the trial court erred to his prejudice and violated his Sixth Amendment rights by
entering a judgment of conviction after a trial at which he received ineffective
assistance of counsel; 2) the trial court erred to his prejudice by conducting the trial
without him being present; 3) the trial court erred to his prejudice by failing to
merge allied offenses of similar import at the time of sentencing; 4) the trial court
erred in imposing consecutive sentences when the record did not support the
findings made by the trial court to impose consecutive sentences; and 5) his
convictions are not supported by sufficient evidence and are contrary to the
manifest weight of the evidence.
{¶2} However, because the trial court failed to dispose of the eight counts
contained in the first indictment, no final appealable order exists. As a result, we
lack jurisdiction to address the merits of Jackson’s arguments and instead we must
dismiss the appeal for lack of jurisdiction.
PROCEDURAL HISTORY
{¶3} On August 2, 2022, an indictment was filed charging Jackson with
eight felony counts, as follows:
Count One: Trafficking in Heroin, in violation of
R.C. 2925.03(A)(2) and (C)(6)(f), a felony of
the first degree (also containing R.C.
2941.141(A) and 2941.1417(A) firearm
specifications);
Count Two: Trafficking in a Fentanyl Related Compound,
in violation of R.C. 2925.03(A)(2) and
Scioto App. No. 23CA4031 3
(C)(9)(g), a felony of the first degree (also
containing R.C. 2941.141(A) and
2941.1417(A) firearm specifications);
Count Three: Possession of Heroin, in violation of R.C.
2925.11(A) and (C)(6)(e), a felony of the first
degree (also containing R.C. 2941.141(A)
and 2941.1417(A) firearm specifications);
Count Four: Possession of a Fentanyl-Related Compound,
in violation of R.C. 2925.11(A) and
(C)(11)(f), a felony of the first degree (also
containing R.C. 2941.141(A) and
2941.1417(A) firearm specifications);
Count Five: Having Weapons While Under Disability, in
violation of R.C. 2923.13(A)(3) and (B), a
felony of the third degree (also containing a
R.C. 2941.1417(A) firearm specification);
Count Six: Having Weapons While Under Disability, in
violation of R.C. 2923.13(A)(2) and (B), a
felony of the third degree (also containing a
R.C. 2941.1417(A) firearm specification);
Count Seven: Improperly Handling Firearms in a Motor
Vehicle, in violation of R.C. 2923.16(B) and
I), a felony of the fourth degree (also
containing a R.C. 2941.1417(A) firearm
specification); and
Count Eight: Possessing Criminal Tools, in violation of
R.C. 2923.24(A) and (C), a felony of the fifth
degree.
Scioto App. No. 23CA4031 4
Jackson was arrested on those charges, retained counsel, was arraigned, and pled
not guilty. The matter then proceeded through discovery.
{¶4} Subsequently, on November 22, 2022, a second indictment was filed
under the same case number charging Jackson with 12 felony counts. Some of the
counts contained in the second indictment were same as those contained in the first
indictment, some were different, and there were four new counts, as follows:
Count One: Trafficking in a Fentanyl-Related
Compound, in violation of R.C.
2925.03(A)(2) and (C)(9)(g), a
felony of the first degree (also
containing R.C. 2941.141(A) and
2941.1417(A) firearm specifications);
Count Two: Possession of a Fentanyl-Related Compound,
in violation of R.C. 2925.11(A) and
(C)(11)(f), a felony of the first degree (also
containing R.C. 2941.141(A) and
2941.1417(A) firearm specifications);
Count Three: Trafficking in a Fentanyl-Related
Compound, in violation of R.C.
2925.03(A)(2) and (C)(9)(e), a
felony of the second degree (also
containing R.C. 2941.141(A) and
2941.1417(A) firearm specifications);
Count Four: Possession of a Fentanyl-Related Compound,
in violation of R.C. 2925.11(A) and
(C)(11)(d), a felony of the second degree
(also containing R.C. 2941.141(A) and
2941.1417(A) firearm specifications);
Count Five: Trafficking in Cocaine, in violation of R.C.
2925.03(A)(2) and (C)(4)(d), a felony of the
Scioto App. No. 23CA4031 5
third degree (also containing R.C.
2941.141(A) and 2941.1417(A) firearm
specifications);
Count Six: Possession of Cocaine, in violation of R.C.
2925.11(A) and (C)(4)(c), a felony of
the third degree (also containing R.C.
2941.141(A) and 2941.1417(A) firearm
specifications);
Count Seven: Aggravated Trafficking in Drugs, in violation
of R.C. 2925.03(A)(2) and (C)(1)(c),
a felony of the third degree (also
containing R.C. 2941.141(A) and
2941.1417(A) firearm specifications);
Count Eight: Aggravated Possession of Drugs, in violation
of R.C. 2925.11(A) and (C)(1))(b), a felony
of the third degree (also containing
R.C. 2941.141(A) and 2941.1417(A)
firearm specifications);
Count Nine: Having Weapons While Under Disability, in
violation of R.C. 2923.13(A)(3) and (B), a
felony of the third degree (also containing a
R.C. 2941.1417(A) firearm specification);
Count Ten: Having Weapons While Under Disability, in
violation of R.C. 2923.13(A)(2) and (B), a
felony of the third degree (also containing a
R.C. 2941.1417(A) firearm specification);
Count Eleven: Improperly Handling Firearms in a Motor
Vehicle, in violation of R.C. 2923.16(B) and
(I), a felony of the fourth degree (also
containing a R.C. 2941.1417(A) firearm
specification); and
Scioto App. No. 23CA4031 6
Count Twelve: Possessing Criminal Tools, in violation of
R.C. 2923.24(A) and (C), a felony of the fifth
degree
{¶5} Thus, although both the first and second indictments included first-
degree felony counts of possession of and trafficking in a fentanyl-related
compound, the possession of heroin and trafficking in heroin charges contained in
the first indictment were missing from the second indictment, which instead
contained possession of and trafficking in cocaine charges. Additionally, the
second indictment included second-degree felony counts of possession and
trafficking in a fentanyl-related compound, in addition to the first-degree felony
counts, as well third-degree felony counts of aggravated possession of and
aggravated trafficking in drugs.
{¶6} Jackson was again arraigned and pled not guilty to the charges, but this
time Jackson was represented by appointed counsel, who had replaced Jackson’s
previously retained counsel. During the second arraignment hearing and the
pretrial hearings conducted thereafter, the second indictment was referred to as a
superseding indictment and it appears the parties only discussed the counts
contained in the second indictment.
{¶7} The matter thereafter proceeded to trial on March 13, 2023. Jackson
was found guilty of all 12 counts contained in the second indictment, along with
eight firearm specifications. After merging several of the counts for purposes of
Scioto App. No. 23CA4031 7
sentencing, Jackson received an aggregate prison sentence of 25 years and 6
months to an indefinite term of 31 years, with 18 years being mandatory. The trial
court issued a judgment entry on May 15, 2023 imposing sentence; however, the
entry did not dismiss the charges contained in the first indictment. It is from that
judgment that Jackson now appeals, setting forth five assignments of error for our
review.
ASSIGNMENTS OF ERROR
I. THE TRIAL COURT ERRED TO THE PREJUDICE OF
MR JACKSON’S SIXTH AMENDMENT RIGHTS BY
ENTERING JUDGEMENT [SIC] AND CONVICTION
AFTER A TRIAL AT WHICH HE RECEIVED
INEFFECTIVE ASSISTANCE OF COUNSEL FOR HIS
DEFENSE.
II. THE TRIAL COURT ERRED TO THE PREJUDICE OF
MR. JACKSON BY CONDUCTING THE TRIAL
WITHOUT HIM BEING PRESENT.
III. THE TRIAL COURT ERRED TO THE PREJUDICE OF
MR. JACKSON BY FAILING TO MERGE ALLIED
OFFENSES OF SIMILAR IMPORT AT THE TIME OF
SENTENCING.
IV. THE TRIAL COURT ERRED IN IMPOSING
CONSECUTIVE SENTENCES WHEN THE RECORD
DID NOT SUPPORT THE FINDINGS MADE BY THE
TRIAL COURT TO IMPOSE CONSECUTIVE
SENTENCES.
V. MR. JACKSON’S CONVICTIONS WERE NOT
SUPPORTED BY SUFFICIENT EVIDENCE AND IS
[SIC] CONTARY TO THE MANIFEST WEIGHT OF
THE EVIDENCE.
Scioto App. No. 23CA4031 8
LEGAL ANALYSIS
{¶8} Before we address the merits of the appeal, we must determine whether
we have jurisdiction to do so. Appellate courts “have such jurisdiction as may be
provided by law to review and affirm, modify, or reverse judgments or final orders
of the courts of record inferior to the court of appeals within the district ….”
Ohio Constitution, Article IV, Section 3(B)(2). “If a court's order is not final and
appealable, we have no jurisdiction to review the matter and must dismiss the
appeal.” Clifton v. Johnson, 2015-Ohio-4246, ¶ 8 (4th Dist.). “In the event that
the parties do not raise the jurisdictional issue, we must raise it sua sponte.”
Id.
Our review of the record in this case reveals a jurisdictional issue which prevents
us from reaching the merits of the appeal.
{¶9} “The General Assembly enacted R.C. 2505.02 to specify which orders
are final.” State v. Cutright, 2021-Ohio-1582, ¶ 6 (4th Dist.), citing Smith v. Chen,
2015-Ohio-1480, ¶ 8. “A judgment of conviction is a final order subject to appeal
under R.C. 2505.02 when it sets forth (1) the fact of the conviction, (2) the
sentence, (3) the judge's signature, and (4) the time stamp indicating the entry upon
the journal by the clerk.” State v. Lester,
2011-Ohio-5204, paragraph one of the
syllabus. “The Supreme Court of Ohio has … held that in a criminal case
involving multiple counts, a final order need not contain a reiteration of those
counts that were resolved on the record in other ways, such as dismissal, nolled
Scioto App. No. 23CA4031 9
counts, or not guilty findings.”
Cutright at ¶ 7, citing State ex rel. Rose v.
McGinty,
2011-Ohio-761, ¶ 3. “But unless the charges that do not result in
conviction have been terminated by a journal entry, the hanging charges prevent
the conviction from being a final order under R.C. 2505.02(B) because it does not
determine the action by resolving the entire case.” (Emphasis added)
Id., and cases
cited therein.
{¶10} In this case, Jackson was charged in two indictments filed under the
same case number. The trial court and parties appear to have treated the first
indictment as if it had been dismissed and replaced by the second indictment
(which was stamped as a “superseding” indictment), and Jackson was convicted of
all 12 counts contained in the second indictment, along with 8 firearm
specifications. However, “ ‘ “[i]t is axiomatic that a court speaks only through its
journal entries.” ’ ” State v. Richards, 2021-Ohio-389, ¶ 12 (4th Dist.), quoting
State v. Payton,
2015-Ohio-1796, ¶ 7 (4th Dist.), in turn quoting State ex rel.
Collier v. Farley,
2005-Ohio-4204, ¶ 18 (4th Dist.). The trial court did not dispose
of the counts in the first indictment via journal entry.
{¶11} As a result, the eight counts in the first indictment constitute “hanging
charges” which prevent the trial court's judgment entry of sentence from being a
final appealable order. See State v. Kuntz, 2023-Ohio-669, ¶ 4, 7 (4th Dist.)
(although trial court orally granted state's motion to dismiss two counts in first
Scioto App. No. 23CA4031 10
indictment, court failed to formally dismiss those counts via journal entry, so
judgment entry of sentence regarding counts in second indictment was not a final
appealable order); State v. Nesbitt,
2023-Ohio-1276, ¶ 10 (4th Dist.) (although trial
court and parties appeared to have treated first indictment as if it had been
dismissed and replaced by second indictment, court did not dispose of counts in
first indictment via journal entry, so judgment entry of sentence was not a final
appealable order); State v. Gutierrez,
2024-Ohio-1404, ¶ 9 (4th Dist.) (although the
trial court and parties appear to have treated the first indictment as having been
dismissed and replaced by the second indictment, because the trial court did not
dispose of the counts in the first indictment via journal entry, the judgment entry of
sentence related to the second indictment was not a final appealable order).
Therefore, we lack jurisdiction to address the merits of this appeal and dismiss it.
APPEAL DISMISSED.
Scioto App. No. 23CA4031 11
JUDGMENT ENTRY
It is ordered that the APPEAL BE DISMISSED and costs be assessed to
Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the
Scioto County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON
BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR
THIS COURT, it is temporarily continued for a period not to exceed 60 days upon
the bail previously posted. The purpose of a continued stay is to allow Appellant
to file with the Supreme Court of Ohio an application for a stay during the
pendency of proceedings in that court. If a stay is continued by this entry, it will
terminate at the earlier of the expiration of the 60-day period, or the failure of the
Appellant to file a notice of appeal with the Supreme Court of Ohio in the 45-day
appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal
prior to expiration of 60 days, the stay will terminate as of the date of such
dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
Abele, J. and Hess, J., concur in Judgment and Opinion.
For the Court,
_____________________________
Jason P. Smith
Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from the
date of filing with the clerk.
