[Cite as State v. Schlosser,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO

Plaintiff-Appellee

v.

JOHN D. SCHLOSSER

Defendant-Appellant

Appellate Case No. 26888

Trial Court Case No. 1994 CR 00389/1

(Criminal Appeal from Common Pleas Court)

DECISION AND FINAL JUDGMENT ENTRY February 19, 2016

PER CURIAM:

{¶ 1} This matter is before the court on the State of Ohio’s motion to dismiss the

appeal. The State asserts that the order on appeal, the trial court’s denial of John

Schlosser’s motion for judicial release, is not final and appealable. Schlosser filed a

response to the motion and a motion to accept his response out of time; the State filed a 2

reply. We sustain Schlosser’s motion to accept his response out of time. We also sustain

the State’s motion to dismiss for lack of a final appealable order.

{¶ 2} Schlosser appeals the trial court’s October 7, 2015 “Decision and Entry

Overruling Defendant’s Motion for Judicial Release.” Schlosser previously filed, and the

trial court overruled, a motion for shock probation in 1995, and a motion for super-shock

probation in 2004. Because the offense was committed prior to July 1, 1996, the trial

court construed the instant motion for judicial release (made pursuant to R.C. 2929.20 and

R.C. 2929.201) as a motion for shock probation (pursuant to R.C. 2947.061). See State v.

Coffman,

,

(2001) (“former R.C. 2947.061 is

available to those who, like appellant, committed their crimes prior to this date”). The trial

court then concluded that Schlosser was ineligible for shock probation under former R.C.

2947.061, and that the court did not have jurisdiction to consider the motion due to

Schlosser’s two previous motions. Schlosser appealed, and the State moved to dismiss

for lack of a final appealable order.

{¶ 3} It is well-settled that appellate courts have jurisdiction to review only final

orders or judgments of the lower courts in their district. Section 3(B)(2), Article IV, Ohio

Constitution; R.C. 2505.02. An appellate court has no jurisdiction to review an order or

judgment that is not final, and an appeal therefrom must be dismissed. Gen. Acc. Ins. Co.

v. Ins. Co. of N. Am.,

,

(1989). The Supreme Court

of Ohio has held that “a trial court’s denial of a motion for shock probation is never a final

appealable order.”

. This court is bound by Coffman. We recently held, in

dismissing another appeal from an order overruling a motion for shock probation, that as a

result of Coffman, 3

defendants lack the ability to challenge any facet of a trial court’s decision on

shock probation, regardless of whether it contains legal error, factual error,

or an abuse of discretion. A trial court’s decision, for example, that

erroneously holds a defendant to be statutorily ineligible for shock probation,

but which expresses a willingness to have allowed it, is entirely - and, in our

opinion, unfairly - unreviewable. In contrast, some courts permit the State to

appeal a trial court’s decision granting shock probation, affording to it the

due process denied to defendants. E.g., State v. Young, 8th Dist. Cuyahoga

No. 79113,

, *2 (Nov. 29, 2001); State v. Moore, 2013-

Ohio-4454,

, ¶ 27-28 (7th Dist.).

State v. McBroom, 2d Dist. Montgomery No. 26578,

, ¶ 4. We have

invited the Supreme Court of Ohio to revisit the issue. At this time, however, this court has

no jurisdiction to hear appeals from the denial of a motion for shock probation pursuant to

R.C. 2947.061.

{¶ 4} This court and others have also held that Coffman requires the dismissal of

orders denying judicial release pursuant to R.C. 2929.20. See, e.g., State v. Greene, 2d

Dist. Greene No. 02-CA-17,

; State v. Williams, 10th Dist. Franklin No.

07AP-1035,

. Schlosser notes that some courts have allowed appeals

from the two statutes, citing State v. Peoples,

,

,

; State v. Strunk, 12th Dist. Warren No. CA2012-03-023,

; and

State v. Rupp,

,

(12th Dist.). These cases, like Young

and Moore cited above, all involve appeals by the State, which are authorized by a

different statute. State v. Burgess, 2d Dist. Greene No. 01-CA-87,

, fn. 2 4

(“The legislature has authorized the state to appeal only from an order granting judicial

release to an offender who has been convicted of a felony of the first or second degree.

See R.C. 2953.08(B)(3)”). To the extent that Schlosser’s motion was one for judicial

release under R.C. 2929.20, the trial court’s denial thereof is not a final appealable order.

{¶ 5} The remaining question is whether the denial of a motion pursuant to the

new statute, R.C. 2929.201, is a final appealable order. That statute, entitled “Application

for Shock Probation,” provides, in relevant part:

Notwithstanding the time limitation for filing a motion under former section

2947.061 of the Revised Code, an offender whose offense was committed

before July 1, 1996, and who otherwise satisfies the eligibility criteria for

shock probation under that section as it existed immediately prior to July 1,

1996, may apply to the offender’s sentencing court for shock probation

under that section on or after the effective date of this section. Not more

than one motion may be filed by an offender under this section.

R.C. 2929.201 became effective on September 15, 2014.

{¶ 6} We discern no relevant difference between the new statute and its

predecessor that would permit us to read into it a right of appeal that did not previously

exist.

(“In matters of probation and parole, we have steadfastly refused to

recognize a right of appeal absent a clear directive from the General Assembly that an

appeal may be prosecuted”). We conclude that the denial of a motion for shock probation

under R.C. 2929.201, like the denial of a motion under R.C. 2947.061, is not a final

appealable order. The new statute vests trial courts with the same discretion as the old; a

defendant’s interest in both is the same, and does not, according to the Supreme Court, 5

“rise to the level of a substantial right.”

; R.C. 2505.02(B)(2); but see State

v. McBroom, 2d Dist. Montgomery No. 26578,

, ¶ 2, quoting State v.

Brandon,

,

(2d Dist. 1993) (holding, prior to

Coffman, that “[t]he ‘substantial right’ affected is the right of an offender to have the trial

court exercise its discretion in ruling upon the motion for shock probation in a nonarbitrary

and rational manner. In short, it is about the right of the offender to procedural due

process”). The State of Ohio’s motion to dismiss is therefore SUSTAINED. Montgomery

App. No. 26888 is DISMISSED for lack of jurisdiction.

{¶ 7} Pursuant to Ohio App.R. 30(A), it is hereby ordered that the Clerk of the

Montgomery County Court of Appeals shall immediately serve notice of this judgment

upon all parties and make a note in the docket of the mailing.

SO ORDERED.

MARY E. DONOVAN, Presiding Judge

MIKE FAIN, Judge

JEFFREY M. WELBAUM, Judge

Copies to:

Terry Lewis 10 W. Second Street, Suite 1100 Dayton, Ohio 45402 Attorney for Appellant

Christina Mahy 301 W. Third Street, 5th Floor Dayton, Ohio 45422 Attorney for Appellee 6

Hon. Timothy N. O’Connell Montgomery County Common Pleas Court 41 N. Perry Street P.O. Box 972 Dayton, Ohio 45422 CA3/KY