[Cite as State v. Bohanon,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 95907

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

TAMEKA BOHANON DEFENDANT-APPELLANT

JUDGMENT: DISMISSED

Criminal Appeal from the Cuyahoga County Common Pleas Court Case No. CR-535173

BEFORE: E. Gallagher, J., Blackmon, P.J., and Keough, J.

RELEASED AND JOURNALIZED: August 18, 2011

ATTORNEY FOR APPELLANT 2

Kevin M. Cafferkey 2000 Standard Building 1370 Ontario Street Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

William D. Mason Cuyahoga County Prosecutor BY: Robert Botnick Assistant County Prosecutor The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113

EILEEN A. GALLAGHER, J.:

{¶ 1} Tameka Bohanon appeals her sentence from the Cuyahoga County Court

of Common Pleas. Bohanon argues the trial court erred in imposing a term of

incarceration that was not proportionate to similarly situated offenders and that her trial

counsel rendered ineffective assistance in failing to raise this argument at sentencing.

For the reasons that follow, we dismiss for lack of a final appealable order.

{¶ 2} On March 16, 2010, a Cuyahoga County Grand Jury indicted Bohanon

with two counts of aggravated burglary with forfeiture and one- and three-year firearm 3

specifications, two counts of aggravated robbery with forfeiture and one- and three-year

firearm specifications, two counts of felonious assault, failure to comply, improperly

handling firearms in a motor vehicle, and having weapons while under disability and

theft.

{¶ 3} On August 16, 2010, Bohanon retracted her plea of not guilty and pleaded

guilty to an amended count of burglary with the firearm specifications deleted, one count

of felonious assault, and one count of improperly handling firearms in a motor vehicle.

As a condition of her plea, Bohanon forfeited two handguns. The remaining charges

against Bohanon were nolled.

{¶ 4} On September 22, 2010, Bohanon was sentenced to seven years for

burglary, nine years for felonious assault, and eleven months for improperly handling

firearms in a motor vehicle. The transcript of the sentencing hearing reveals that the

trial court ordered the nine and seven years to be served consecutively with the eleven

months to be served concurrently, for a total prison term of sixteen years. Nonetheless,

the trial court’s journal entries of September 28, 2010 and May 25, 2011, reflect that the

trial court ordered all three prison terms to run consecutively for a total prison sentence

of sixteen years, eleven months. The parties to this appeal both state that Bohanon’s

total prison term is sixteen years.1

It is a fundamental principle of appellate review that the court speaks only 1

through its journal. Kaine v. Marion Prison Warden (2000),

,

; State v. Ahmed, Cuyahoga App. No. 88315,

. As such, 4

{¶ 5} Bohanon appeals, raising the two assignments of error contained in the

appendix to this opinion.

{¶ 6} Similar to this Court’s holding in State v. Jones, Cuyahoga App. No.

95961,

, we find that the judgment from which Bohanon appeals is not a

final appealable order. Ohio law provides that appellate courts have jurisdiction to

review only final orders or judgments. Section III(B)(2), Article IV, Ohio Constitution;

R.C. 2505.02. If an order is not final and appealable, an appellate court has no

jurisdiction to review the matter.

{¶ 7} On April 27, 2011, this court, sua sponte, remanded the record in this

appeal to the trial court pursuant to App.R. 9(E) for correction of the trial court’s

judgment of conviction. We stated, in pertinent part, “[t]he trial court’s judgment of

conviction journalized on September 28, 2010 does not indicate the disposition of the

two forfeiture specifications attached to count 1. Crim.R. 32(C) imposes a mandatory

duty upon the trial court to set forth the plea, the verdict or findings, and the sentence for

each and every criminal charge and specification prosecuted. With respect to forfeiture

specifications, the judgment must describe the forfeited property and order the specific

property to be forfeited. State v. Byrd, Cuyahoga App. No. 91090,

.”

{¶ 8} In Byrd, this court in dismissing an appeal for lack of a final appealable

order regarding forfeiture specifications held, “the order Byrd seeks to appeal fails to

we shall note Bohanon’s sentence as sixteen years, eleven months. 5

address the forfeiture specifications — it does not describe the forfeited property and it

does not order the specific property to be forfeited.” Id. at ¶8. Because the order did

not address the forfeiture specifications, this court found that it did not comply with

Crim.R. 32(C) and State v. Baker,

,

,

, and thus was not a final appealable order. A judgment of conviction is a final

appealable order * * * “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.” Byrd at 5,

quoting Baker at the syllabus.

{¶ 9} Reviewing the trial court’s corrected judgment of conviction filed in the

instant matter, we find that it still does not comply with Byrd, Baker, and Crim.R. 32(C).

The pertinent part of the trial court’s corrected judgment entry provides: “Defendant

forfeits both of the guns.” We find that this vague and general statement does not

describe with specificity the forfeited property as required by Byrd. See, also,

{¶ 10} Moreover, we cannot ascertain from the record what weapons Bohanon

was alleged to have owned or possessed in connection with the charged offenses and

what weapons are to be forfeited. Neither the indictment, bill of particulars, or the

State’s response to discovery identifies “both of the guns.”

{¶ 11} Accordingly, we lack jurisdiction to consider the appeal. 6

Appeal dismissed.

It is ordered that appellee recover of appellant 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

KATHLEEN ANN KEOUGH, J., CONCURS; PATRICIA A. BLACKMON, P.J., DISSENTS WITH SEPARATE OPINION ATTACHED

PATRICIA ANN BLACKMON, P.J., DISSENTING:

{¶ 12} I respectfully dissent from the majority opinion. I believe the trial court’s

judgment entry ordering “Defendant forfeits both of the guns” is specific enough to

constitute a valid forfeiture order. It clearly details that the weapons to be forfeited are

“guns” and that there were “two” of them involved in the case. I find this language is

more specific than in Bohanon’s co-defendant’s case, which we dismissed. State v.

Jones, Cuyahoga App. No. 95961. In Jones’s case the court ordered the defendant to

forfeit “all weapons,” which is a much more vague order. Therefore, I conclude the

judgment entry is a final, appealable order and would address the merits of the appeal. 7

Appendix

Assignments of Error:

“I. The trial court erred in imposing a term of incarceration that is not proportionate to similarly situated defendants.”

“II. Defendant-appellant was denied the effective assistance of counsel.”