[Cite as State v. Thompson,

.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ROSS COUNTY

STATE OF OHIO, : : Plaintiff-Appellee/ : Cross-Appellant. : Case No: 10CA3177 : v. : : DECISION AND ANTHONY THOMPSON, : JUDGMENT ENTRY : Defendant-Appellant/ : File-stamped date: 3-29-11 Cross-Appellee. :

APPEARANCES:

Thomas M. Spetnagel and Paige J. McMahon, Spetnagel and McMahon, Chillicothe, Ohio, for Defendant-Appellant/Cross-Appellee.

Matthew S. Schmidt, Ross County Prosecuting Attorney, and Richard W. Clagg, Ross County Assistant Prosecuting Attorney, Chillicothe, Ohio, for Plaintiff-Appellee/Cross- Appellant.1

Kline, J.:

{¶1} Anthony Thompson (hereinafter “Thompson”) appeals the judgment of the

Ross County Court of Common Pleas, which found him guilty of vehicular homicide. In

addition, the state has filed a cross-appeal related to the trial court’s order of restitution.

However, because there is no final appealable order in the present case, we lack

jurisdiction to consider the parties’ various arguments. Accordingly, we dismiss both

Thompson’s appeal and the state’s cross-appeal for lack of jurisdiction.

I.

1 Michael M. Ater was the Ross County Prosecuting Attorney when this appeal and cross-appeal were filed, and Mr. Ater participated in the briefing of this case. Ross App. No. 10CA3177 2

{¶2} On May 21, 2010, Anthony Thompson pled guilty to vehicular homicide, a

first-degree misdemeanor in violation of R.C. 2903.06(A)(3)(a). And on July 13, 2010,

the trial court filed its Judgment Entry of Sentence. Presumably, however, the trial court

prepared the Judgment Entry of Sentence between May 21, 2010, and June 16, 2010.

We base this presumption on the following language: “[a] restitution hearing will be on

June 16, 2010 at 2:00 P.M., by agreement of counsel.” Judgment Entry of Sentence.

{¶3} After the June 16, 2010 hearing, the trial court ordered Thompson to pay

$14,706.48 in restitution as part of his sentence. The trial court filed its restitution entry

on July 13, 2010 – the same day that the trial court filed Thompson’s Judgment Entry of

Sentence. Significantly, however, the trial court did not amend the Judgment Entry of

Sentence to (1) include the order of restitution or (2) delete the reference to the June

16, 2010 hearing.

{¶4} Thompson appeals from the order of restitution and asserts the following

assignment of error: “THE TRIAL COURT ERRED IN ORDERING APPELLANT TO

PAY AN AMOUNT OF RESTITUTION THAT WAS NOT ESTABLISHED TO A

REASONABLE DEGREE OF CERTAINTY.”

{¶5} On cross-appeal, the state asserts the following two assignments of error: I.

“The trial court erred when it failed to order restitution to the victim’s survivors for

amounts expended on the corresponding civil case from this incident.” And, II. “The trial

court erred when it failed to order restitution to the executor of the estate for her time in

attending court proceedings in this case.”

II. Ross App. No. 10CA3177 3

{¶6} Before we may consider the merits of either Thompson’s appeal or the state’s

cross appeal, we must determine whether a final appealable order exists. “A court of

appeals has no jurisdiction over orders that are not final and appealable.” State v.

Baker,

,

, at ¶6, citing Section 3(B)(2), Article IV,

Ohio Constitution; see, also, R.C. 2505.02. “If a court’s order is not final and

appealable, we have no jurisdiction to review the matter and must dismiss the appeal.”

State v. Darget, Scioto App. No. 09CA3306,

, at ¶4, citing Eddie v.

Saunders, Gallia App. No. 07CA7,

. “If the parties do not raise

the jurisdictional issue, we must raise it sua sponte.” Darget at ¶4, citing Sexton v.

Conley (Aug. 7, 2000), Scioto App. No. 99CA2655; Whitaker-Merrell v. Geupel Constr.

Co. (1972),

.

A.

{¶7} The July 13, 2010 Judgment Entry of Sentence is not final and appealable

because it “‘leaves issues unresolved and contemplates that further action must be

taken[.]’” State v. Kline, Henry App. No. 7-10-09,

, quoting State

ex rel. Keith v. McMonagle,

,

, at ¶4 (other internal

quotation omitted). See, also, State v. Phillips, Cuyahoga App. No. 90124, 2008-Ohio-

5101, at ¶5, citing State v. Threatt,

,

, at ¶20. Here,

the Judgment Entry of Sentence states that “[a] restitution hearing will be on June 16,

2010 at 2:00 P.M., by agreement of counsel.” Thus, the Judgment Entry of Sentence

leaves the issue of restitution unresolved and contemplates further action related to

restitution. Ross App. No. 10CA3177 4

{¶8} Other courts have found that similar judgment entries were not final and

appealable. For example, in Phillips, the judgment entry stated that the trial “[c]ourt

reserve[d] Judgment on restitution amount until further proceedings[.]” Phillips at ¶3.

As a result, the Eighth District Court of Appeals found that the entry was not final and

appealable. Additionally, the Eleventh District Court of Appeals found “that the notation

‘Restitution to be determined’ render[s an] entry interlocutory.” In re Zakov (1995),

. Here, we agree with these other courts.

{¶9} Finally, imposing restitution is substantive and not merely a ministerial task.

According to the Supreme Court of Ohio, “when the remaining issue is mechanical and

unlikely to produce a second appeal because only a ministerial task similar to assessing

costs remains, then the order is final and appealable.” Threatt at ¶20 (internal quotation

omitted) (emphasis sic). But as the court recently explained, “the determination of

restitution entails a substantive legal decision or judgment and is not merely a

mechanical part of a judgment.” State v. Miller,

,

. See, also, Phillips at ¶5, fn.4. Thus, in the present case, the Judgment Entry of

Sentence leaves a substantive issue unresolved.

{¶10} Accordingly, for the foregoing reasons, we find that the Judgment Entry of

Sentence is not a final appealable order.

B.

{¶11} Furthermore, we cannot create a final appealable order by combining the

Judgment Entry of Sentence and the July 13, 2010 restitution entry. The Supreme

Court of Ohio has held in a noncapital criminal case that “[o]nly one document can

constitute a final appealable order.” Baker at ¶17. See, also, State v. Ketterer, 126 Ross App. No. 10CA3177

,

(distinguishing Baker and holding that the

combination of the judgment entry and the sentencing opinion constitutes a final

appealable order in a capital criminal case). Therefore, we cannot combine the trial

court’s multiple entries in an effort to create jurisdiction.

C.

{¶12} In conclusion, we find no final appealable order in the present case. As a

result, we must dismiss Thompson’s appeal and the state’s cross-appeal for lack of

jurisdiction.

APPEAL DISMISSED. Ross App. No. 10CA3177 6

JUDGMENT ENTRY

It is ordered that the APPEAL BE DISMISSED. Appellant/Cross-Appellee and Appellee/Cross-Appellant shall equally split the costs herein.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Ross County Common Pleas Court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.

Abele, J. and McFarland, J.: Concur in Judgment and Opinion.

For the Court

BY:_____________________________ Roger L. Kline, 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.