[Cite as State v. Dudley,

.]

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. Craig R. Baldwin, J. -vs- : : Case No. 13-COA-016 : LARRY W. DUDLEY, JR. : : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Ashland County Court of Common Pleas, Case No. 13-CRI- 024

JUDGMENT: APPEAL DISMISSED

DATE OF JUDGMENT ENTRY: January 15, 2014

APPEARANCES:

For Plaintiff-Appellee: For Defendant-Appellant:

RAMONA J. ROGERS ERIN N. POPLAR ASHLAND CO. PROSECUTOR 103 Milan Ave., Suite 6 PAUL T. LANGE Amherst, OH 44001 110 Cottage Street, Third Floor Ashland, OH 44805 Ashland County, Case No.13-COA-016 2

Delaney, J.

{¶1} Appellant Larry W. Dudley, Jr. appeals from the May 16, 2013 Judgment

Entry – Sentencing of the Ashland County Court of Common Pleas. Appellee is the

state of Ohio. This case is related to but not consolidated with State v. Dudley, 5th Dist.

Ashland No. 13-COA-017.

FACTS AND PROCEDURAL HISTORY

{¶2} A statement of the facts underlying appellant's original conviction is

unnecessary to our disposition of this appeal.

{¶3} Appellant was charged and ultimately entered pleas of no contest to the

following charges in two separate criminal cases:

Case No. Count Offense Revised Code Degree Sentence No. Section 12-CRI- I Burglary 2911.12(A)(3) F3 30 months 1311 12-CRI- III Burglary 2911.12(A)(3) F3 30 months 1311 12-CRI- IV Burglary 2911.12(A)(3) F3 30 months 1311 13-CRI-024 I B&E 2911.13(A) F5 12 months 13-CRI-024 II Theft 2913.02(A)(1) M1 90 days 13-CRI-024 III Theft 2913.02(A)(1) M1 90 days 13-CRI-024 IV B&E 2911.13(A) F5 12 months 13-CRI-024 V Theft 2913.02(A)(1) M1 90 days 13-CRI-024 VI B&E 2911.13(A) F5 12 months 13-CRI-024 VII Theft 2913.02(A)(1) M1 90 days 13-CRI-024 VIII Theft 2913.02(A)(1) F5 12 months from elderly person

{¶4} After appellant changed his pleas and prior to entering sentences, the trial

court ordered a presentence investigation (P.S.I.) which has been made part of the

record on appeal. The lengthy P.S.I. indicates appellant engaged in a series of thefts Ashland County, Case No.13-COA-016 3

and burglaries with a cohort to support a serious drug habit. Appellant has an extensive

criminal history of similar offenses.

{¶5} In this case, the trial court found consecutive sentences are necessary to

protect the public from future crimes and to punish the offender and are not

disproportionate to the seriousness of appellant’s conduct. The felony sentences were

therefore ordered to be served consecutively for an aggregate prison term of eleven and

a half years. (The misdemeanor sentences were ordered to be served concurrently.)

{¶6} As the trial court sentenced appellant to prison, appellant cursed and

threatened the trial judge. Appellant was therefore removed from the courtroom and

sentencing continued.

{¶7} Restitution was a significant issue at sentencing. Items stolen by

appellant included copper pipe from a house, the removal of which caused flooding and

significant damage. Appellee reported a restitution amount of $89,000 for that victim,

although the victim had not yet presented any documentation. At sentencing, after

appellant’s removal from the courtroom, the trial court stated the following regarding

restitution:

* * *.

I am assessing the Court costs in this matter including the $30 fee

required pursuant to Section 2949.041 and the $30 fee required

pursuant to Section 2743.70, and the $25 fee required to Section

120.36. I am further Ordering that [appellant] pay restitution to

Heather Harrison in the amount of $2,578, that he pay restitution to

Phillip Lininger in the amount of $500, that he pay restitution to Ashland County, Case No.13-COA-016 4

Jerry Smith in the amount of $900, and that he pay restitution to

Teresa Stackhouse in the amount of $87,500, although I do

want to make that Order subject to some documentation either

in the form of a settlement or what have you, that provides the

Court with a little more verification that in fact was the amount,

the $89,000 was the amount of the insurance claim. (Emphasis

added.)

* * *.

{¶8} The resulting Judgment Entry – Sentencing of the trial court filed May 16,

2013 states the following regarding restitution:

The Defendant is ORDERED to make restitution in the amount of

Five Hundred Dollars ($500.00) to Phillip Leininger; Nine Hundred

Dollars ($900.00) to Jerry Smith; Eighty-Seven Thousand Five

Hundred Dollars ($87,500.00) to Theresa Stackhouse, the victims

in this case. In regards to the restitution order for Theresa

Stackhouse, the Court’s restitution order is being issued

subject to the Court receiving written documentation in

support of the amount of restitution ordered. If the Court does

not receive written documentation from Ms. Stackhouse, the

Court may set aside the restitution order for her. (Emphasis

added.)

{¶9} Appellant now appeals from the judgment entry of conviction and

sentence entered by the trial court on May 16, 2013. Ashland County, Case No.13-COA-016 5

{¶10} Appellant raises five assignments of error:

ASSIGNMENTS OF ERROR

{¶11} “I. THE TRIAL COURT ERRED WHEN IT IMPOSED PRISON

SENTENCES FOR FOUR FIFTH DEGREE FELONIES WITHOUT MAKING A

SPECIFIC FINDING THAT ANY FACTOR CONTAINED IN OHIO REVISED CODE

2929.13(B)(1)(b) APPLY (sic) RELATIVE TO APPELLANT.”

{¶12} “II. THE TRIAL COURT ERRED WHEN IT IMPOSED CONSECUTIVE

12-MONTH SENTENCES FOR FOUR FIFTH DEGREE FELONY CONVICTIONS

SUCH THAT THE AGGREGATE SENTENCE EXCEEDED THE MAXIMUM PRISON

TERM ALLOWED BY OHIO REVISED CODE 2929.14(A) FOR THE MOST SERIOUS

OFFENSE OF WHICH THE APPELLANT WAS CONVICTED, 12 MONTHS.”

{¶13} “III. THE TRIAL COURT ERRED TO (sic) ORDERING APPELLANT TO

PAY MORE THAN $90,000.00 IN RESTITUTION WITHOUT SUPPORTING

DOCUMENTATION, OUTSIDE OF APPELLANT’S PRESENCE AND IN AN

UNDETERMINED AMOUNT.”

{¶14} “IV. IN THE ALTERNATIVE, APPELLANT WAS DENIED EFFECTIVE

ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AND FOURTEENTH

AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I,

SECTION 10 OF THE OHIO CONSTITUTION BECAUSE HIS COUNSEL DID NOT

DISPUTES (sic) RESTITUTION AMOUNTS OR REQUEST A HEARING ON

RESTITUTION.”

{¶15} “V. THE TRIAL COURT ERRED IN ORDERING MAXIMUM

CONSECUTIVE PRISON SENTENCES FOR FIFTH DEGREE FELONIES AS THE Ashland County, Case No.13-COA-016 6

IMPOSITION OF SUCH SENTENCES PLACES AN UNNECESSARY BURDEN ON

STATE RESOURCES.”

ANALYSIS

I., II., III., IV., V.

{¶16} As an initial matter, we must address whether the judgment entry of May

16, 2013 constitutes a final appealable order in light of the indefinite restitution order

For the following reasons, we find it does not, and therefore we dismiss the within

appeal for lack of a final appealable order.

{¶17} The Ohio Supreme Court has recognized “the determination of restitution

entails a substantive legal decision or judgment and is not merely a mechanical part of a

judgment.” State v. Miller,

, 2010–Ohio–5705,

.

Generally, as the Court held at the syllabus in State v. Danison,

,

2005–Ohio–781, 823 N.E .2d 444, “[a]n order of restitution imposed by the sentencing

court on an offender for a felony is part of the sentence and, as such, is a final and

appealable order.”

{¶18} Where a judgment entry does not settle either the amount of restitution or

the method of payment, however, it is not a final appealable order. State v. Kuhn, 3rd

Dist. Defiance No. 4–05–23, 2006–Ohio–1145, ¶ 8; In re Zakov,

,

(11th Dist. 1995); In re Holmes,

,

(1st Dist. 1980). In this case, a significant order of restitution is dependent upon one

victim submitting proof of her insurance claim or other documentation satisfactory to the

trial court. Ashland County, Case No.13-COA-016 7

{¶19} We note the record is silent as to whether any party has requested a

hearing to finalize this restitution amount.

{¶20} The May 16, 2013 entry thus lacks a complete sentence and is merely

interlocutory. State v. Riggs, 5th Dist. Licking No. 2009 CA 00041,

, fn

2. Accordingly, we find there is no final appealable order in this case.

{¶21} Appellant’s appeal is therefore dismissed.

CONCLUSION

{¶22} For the foregoing reasons, this appeal is dismissed for lack of a final

appealable order.

By: Delaney, J. and

Hoffman, P.J.

Baldwin, J., concur.