[Cite as In re A.H., 2011-Ohio-2039.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95661
IN RE: A.H.
A Minor Child
JUDGMENT:
DISMISSED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. DL 10100171
BEFORE: Sweeney, J., Stewart, P.J., and Jones, J.
RELEASED AND JOURNALIZED: April 28, 2011
ATTORNEY FOR APPELLANT, A.H.
Sheryl A. Trzaska, Esq.
Assistant State Public Defender
Office of the Ohio Public Defender
250 East Broad Street, Suite 1400
Columbus, Ohio 43215
ATTORNEYS FOR APPELLEE, STATE OF OHIO
William D. Mason
Cuyahoga County Prosecutor
By: Michael D. Horn, Esq.
Justin S. Gould, Esq.
Assistant County Prosecutors
The Justice Center
1200 Ontario Street, 8th Floor
Cleveland, Ohio 44115
JAMES J. SWEENEY, J.:
{¶ 1} Defendant-appellant A.H. appeals his juvenile delinquency adjudication for
felonious assault with firearm specifications. After reviewing the facts of the case and
pertinent law, we dismiss the appeal for lack of a final, appealable order and remand with
instructions to expeditiously enter disposition on all counts of delinquency pursuant to Juv.R.
29.
{¶ 2} On July 28, 2010, A.H. was adjudicated delinquent in juvenile court on one
count of felonious assault in violation of R.C. 2903.11(A)(1) and/or (A)(2), with firearm
specifications, and one count of attempted burglary in violation of R.C. 2911.12(A)(4) and
R.C. 2923.02, with firearm specifications.
{¶ 3} On August 4, 2010, the court held a dispositional hearing and committed A.H.
to the Ohio Department of Youth Services (ODYS) as follows: a minimum of 12 months for
the felonious assault in violation of R.C. 2903.11(A)(2) to run consecutive to two years for the
firearm specification, with “a maximum period not to exceed the child’s attainment of the age
of twenty-one (21) years.”
{¶ 4} A.H. appeals and raises one assignment of error for our review, arguing that his
adjudication for felonious assault with firearm specifications is against the manifest weight of
the evidence. However, we lack jurisdiction to review this case because there is no final,
appealable order, which is an issue appellate courts may raise sua sponte. Chef Italiano
Corp. v. Kent State Univ. (1989), 44 Ohio St.3d 86, 541 N.E.2d 64.
{¶ 5} “A court of appeals has no jurisdiction over orders that are not final and
appealable.” State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163, ¶6.
See, also, Section 3(B)(2), Article IV, Ohio Constitution; R.C. 2505.02. In Baker, the Ohio
Supreme Court interpreted Crim.R. 32(C) to hold that a defendant in a criminal case “is
entitled to appeal an order that sets forth the manner of conviction and the sentence.” Baker,
¶18.
{¶ 6} Ohio courts have applied this concept to juvenile delinquency proceedings.
The Ninth District Court of Appeals dismissed an appeal after the court adjudicated the
juvenile delinquent for robbery, aggravated burglary, and theft, but disposed of only the
robbery and aggravated burglary counts. In re S.S., Summit App. No. 24565,
2009-Ohio-4515. The In re S.S. court relied on the Ohio Supreme Court’s holding that “[i]t
is rudimentary that a finding of delinquency by a juvenile court, unaccompanied by any
disposition thereof, is not a final appealable order.” Id. at ¶4 (quoting In re Sekulich (1981),
65 Ohio St.2d 13, 14, 417 N.E.2d 1014). See, also, In re Huckleby, Defiance App. No.
4-06-40, 2007-Ohio-6149.
{¶ 7} Juv.R. 29 governs juvenile delinquency proceedings, and it states in pertinent
part that if the allegations in the complaint are proven, the court shall “[e]nter an
adjudication and proceed * * * to disposition * * *.” Juv.R. 29(F)(2)(a). Furthermore,
Juv.R. 2(M) defines a “dispositional hearing” as “a hearing to determine what action shall be
taken concerning a child who is within the jurisdiction of the court.”
{¶ 8} This court has previously held than an “omnibus” disposition regarding multiple
counts of delinquency with firearm specifications was a final, appealable order. In re R.W.,
Cuyahoga App. No. 91923, 2009-Ohio-1255. However, the In re R.W. dissent opined that
there was not a final, appealable order because Juv.R. 29 required separate dispositions as to
each count of delinquency, including the merger of firearm specifications, as required under
1
the law for adult criminal proceedings.
{¶ 9} In the instant case, it is clear that a blanket disposition could not cover all
counts in the complaint against A.H., as the attempted burglary offense is not addressed in the
dispositional order. Accordingly, the case at hand does not involve a final, appealable order
under In re R.W.
{¶ 10} It stands to reason that a juvenile court must render a disposition as to each
count for which a juvenile is adjudicated delinquent. To hold otherwise would risk leaving
issues unresolved. For example, if we reversed A.H.’s delinquency adjudication for
felonious assault with firearm specifications as being against the manifest weight of the
evidence and vacated the disposition committing him to ODYS, A.H.’s delinquency
adjudication for attempted burglary would be left unaccompanied by an explicit disposition.
Akin to the adult criminal justice system, this is a conviction without a sentence. “A
judgment that leaves issues unresolved and contemplates that further action must be taken is
not a final appealable order.” State v. Threatt, 108 Ohio St.3d 277, 2006-Ohio-905, 843
1
We note that “[f]irearm specifications are not in and of themselves offenses[; rather], they
are specifications attached to various offenses that enhance the penalty. The single act or transaction
analysis is the appropriate test for determining the merger of specifications.” State v. Bonner,
Cuyahoga App. Nos. 93168 and 93176, 2010-Ohio-2885, ¶15 (internal citations omitted).
N.E.2d 164, ¶20 (quoting Bell v. Horton (2001), 142 Ohio App.3d 694, 696, 756 N.E.2d
1241).
{¶ 11} In the instant case, the court found that the allegations against A.H. were proven
and adjudicated A.H. delinquent as to one count of felonious assault and one count of
attempted burglary, both with firearm specifications. The court continued the matter for
disposition. At the dispositional hearing, and in the journal entry committing defendant to
ODYS, the court rendered a disposition only for the felonious assault count with firearm
specifications. Because the court did not dispose of all the counts, the judgment is not a
final, appealable order. Accordingly, we lack jurisdiction over this case, and this appeal is
dismissed and the matter is remanded for further proceedings consistent with this opinion.
Dismissed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
JAMES J. SWEENEY, JUDGE
MELODY J. STEWART, P.J., and
LARRY A. JONES, J., CONCUR
In re A.H.
Combined Opinion