[Cite as State v. Brown, 2011-Ohio-3645.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
: JUDGES:
STATE OF OHIO : W. Scott Gwin, P.J.
: William B. Hoffman, J.
Plaintiff-Appellee : Julie A. Edwards, J.
:
-vs- : Case No. 10-CA-133
:
:
SHERRY BROWN : OPINION
Defendant-Appellant
CHARACTER OF PROCEEDING: Criminal Appeal from Licking County
Court of Common Pleas Case No.
09-CR-583
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: July 21, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
EARL L. FROST J. MATTHEW DAWSON
Assistant Prosecuting Attorney 35 South Park Place
Licking County Prosecutor’s Office Suite 10
20 S. Second Street, 4th Floor Newark, Ohio 43055
Newark, Ohio 43055
[Cite as State v. Brown, 2011-Ohio-3645.]
Edwards, J.
{¶1} Appellant, Sherry Brown, appeals a judgment of the Licking County
Common Pleas Court convicting her of grand theft upon a plea of no contest. Appellee
is the State of Ohio.
STATEMENT OF FACTS AND CASE
{¶2} On October 22, 2010, appellant entered a plea of no contest to one count
of grand theft. The court proceeded to sentencing at the change of plea hearing.
However, when the court came to the issue of restitution, the State was not prepared to
proceed. The court stated on the record that it had two different numbers in front of it
and needed to hear evidence. The State requested an opportunity to subpoena
appropriate witnesses on the issue of restitution. The court asked counsel for appellant
if he had any objection to a continuance, and counsel responded that he did not object.
The court then continued the balance of the sentencing hearing until the parties could
produce evidence on the issue of restitution. Tr. 44-45.
{¶3} The court issued a judgment entry on October 26, 2010, finding appellant
guilty upon a no contest plea and sentencing her to a period of community control of
one year. The entry states, “The Court reserves jurisdiction on the matter of restitution.
The matter will be set for further hearing.” Appellant filed a notice of appeal from this
entry.
{¶4} The court held an evidentiary hearing on the issue of restitution on
November 19, 2010. Following this hearing, the court issued another judgment entry of
conviction and sentence on December 10, 2010, finding appellant guilty upon a plea of
Licking County App. Case No. 10-CA-133 3
no contest, sentencing her to a term of community control of one year, and ordering her
to pay restitution in the amount of $9,842.00.
{¶5} Appellant assigns a single error to the October 26, 2010, judgment of the
court:
{¶6} “THE TRIAL COURT ERRED WHEN IT DID NOT SPECIFY THE
AMOUNT OF RESTITUTION AT SENTENCING.”
{¶7} Appellant argues that pursuant to this Court’s decision in State v. Riggs
(Riggs II), Licking App. No. 2010CA20, 2010-Ohio-5697, the trial court erred in failing to
specify the amount of restitution at the original sentencing hearing of October 22, 2010,
and in failing to make that amount a part of the October 26, 2010, judgment of
conviction of sentence.
{¶8} In Riggs, the trial court initially sentenced the appellant to six months in
prison, stating that the appellant “shall pay restitution for damages caused in this case.
The Court retains jurisdiction over the amount of restitution owed.” This Court
dismissed an appeal from this entry, finding the order was not appealable pursuant to
State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163, because the
amount of restitution must be in the entry for the entry to be a final, appealable order.
State v. Riggs (Riggs I), Licking App. No. 2009CA00041, 2009-Ohio-6821, ¶30. The
trial court thereafter issued a judgment in compliance with Baker, including the amount
of restitution, and the appellant filed a notice of appeal from this entry.
{¶9} In Riggs II, this Court found that the trial court erred pursuant to R.C.
2929.18(A)(1), which provides, “[i]f the court imposes restitution, at sentencing, the
court shall determine the amount of restitution to be made by the offender.” We
Licking County App. Case No. 10-CA-133 4
concluded that when we remanded pursuant to Baker, the appellant was not present for
the imposition of sentence which imposed a specific amount of restitution, and we
remanded with instructions to resentence the appellant in accordance with R.C.
2929.18(A)(1). 2010-Ohio-5697 at ¶64-65.
{¶10} In the instant case, the order appealed from is nearly identical to the entry
in Riggs I. It is clear from the Court’s entry and the transcript of the October 22, 2010,
change of plea and sentencing hearing that the court did not consider sentencing to be
complete at the time the October 26, 2010, judgment was issued, and had continued
that portion of the sentencing hearing concerning restitution for a later evidentiary
hearing without objection from appellant. While appellant now claims in her brief that
she was prepared to go forward with evidence concerning restitution at that hearing and
the prosecution was unprepared, when asked if there was any objection to the
continuance, counsel for appellant specifically stated on the record that he had no
objection.
Licking County App. Case No. 10-CA-133 5
The entry appealed from is not a final appealable order, and appellant has failed to
appeal the final judgment of conviction and sentence issued December 10, 2010.
{¶11} The appeal is dismissed for want of a final, appealable order.
By: Edwards, J.
Gwin, P.J. and
Hoffman, J. concur
______________________________
______________________________
______________________________
JUDGES
JAE/r0523
[Cite as State v. Brown, 2011-Ohio-3645.]
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
SHERRY BROWN :
:
Defendant-Appellant : CASE NO. 10-CA-133
For the reasons stated in our accompanying Memorandum-Opinion on file, the
appeal of the October 26, 2010, Judgment Entry of the Licking County Court of
Common Pleas is dismissed. Costs assessed to appellant.
_________________________________
_________________________________
_________________________________
JUDGES