[Cite as State v. Dotson, 2020-Ohio-3150.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
STATE OF OHIO, : MEMORANDUM OPINION
Plaintiff-Appellee, :
CASE NO. 2019-T-0051
- vs - :
BRYAN MITCHELL DOTSON, :
Defendant-Appellant. :
Civil Appeal from the Trumbull County Court of Common Pleas.
Case No. 2016 CR 00368.
Judgment: Appeal dismissed.
Dennis Watkins, Trumbull County Prosecutor, and Ashleigh Musick, Assistant
Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH
44481-1092 (For Plaintiff-Appellee).
Michael A. Partlow, 112 South Water Street, Suite C, Kent, OH 44240 (For Defendant-
Appellant).
TIMOTHY P. CANNON, P.J.
{¶1} This appeal is taken from the Trumbull County Court of Common Pleas’
dismissal of appellant, Bryan Mitchell Dotson’s, Petition and Amended Petition for
Postconviction Relief. Appellee, the state of Ohio, filed a motion in this court to dismiss
the appeal for lack of a final, appealable order. Appellant has not responded to the
motion.
{¶2} On February 19, 2019, appellant filed his Petition for Postconviction Relief.
Appellant argued he received ineffective assistance of trial counsel, in violation of his
federal and state constitutional rights, due to (1) trial counsel’s failure to call a particular
witness to testify on appellant’s behalf and (2) trial counsel’s failure to cross-examine
state witnesses based upon discovery materials provided to the defense on the issue of
whether one individual was an accomplice in the crimes charged.
{¶3} The state of Ohio filed a motion for summary judgment in the trial court on
March 1, 2019.
{¶4} On March 11, 2019, with leave of court, appellant filed an Amended
Petition for Postconviction Relief. Appellant added the additional argument that he
received ineffective assistance of trial counsel due to (3) trial counsel’s failure to provide
evidence of malice and lack of credibility of the state’s chief witness.
{¶5} The state of Ohio filed amended proposed findings of facts and
conclusions of law on May 6, 2019.
{¶6} The trial court granted summary judgment in favor of the state and
dismissed appellant’s Petition and Amended Petition for Postconviction Relief, without a
hearing, on July 9, 2019.
{¶7} The trial court’s conclusions of law do not address the third ineffective
assistance claim raised in appellant’s Amended Petition, precipitating the state’s motion
to dismiss this appeal for lack of a final, appealable order.
{¶8} A postconviction proceeding is a collateral civil attack on the judgment of
conviction. State v. Calhoun, 86 Ohio St.3d 279, 281 (1999). Rule 54(B) of the Ohio
Rules of Civil Procedure provides:
When more than one claim for relief is presented in an action, * * *
the court may enter final judgment as to one or more but fewer than
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all of the claims or parties only upon an express determination that
there is no just reason for delay. In the absence of a determination
that there is no just reason for delay, any order or other form of
decision, however designated, which adjudicates fewer than all the
claims * * *, shall not terminate the action as to any of the claims * *
*, and the order or other form of decision is subject to revision at
any time before the entry of judgment adjudicating all the claims * *
*.
{¶9} An entry that enters final judgment as to fewer than all of the claims and
that does not include Civ.R. 54(B) language stating “there is no just reason for delay” is
not a final, appealable order. Kessler v. Totus Tuus, L.L.C., 11th Dist. Ashtabula No.
2007-A-0028, 2007-Ohio-3019, ¶7 (citations omitted). In the absence of a final,
appealable order, the appellate court is without jurisdiction to review the matter. See
Ohio Const., Art. IV, Sec. 3(B)(2); R.C. 2505.02(B).
{¶10} Here, appellant presented three claims for relief in his Amended Petition.
The trial court entered final judgment only as to two of those claims and did not make an
express determination that “there is no just reason for delay.” Accordingly, the July 9,
2019 entry did not terminate the postconviction proceeding and is subject to revision at
any time. This court is therefore without jurisdiction to review the appeal taken from that
entry. See State v. Bryan, 8th Dist. Cuyahoga No. 87482, 2006-Ohio-5022.
{¶11} The state of Ohio’s motion to dismiss is hereby granted, and this appeal is
dismissed for lack of a final, appealable order.
{¶12} APPEAL DISMISSED.
CYNTHIA WESTCOTT RICE, J.,
THOMAS R. WRIGHT, J.,
concur.
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State v. Dotson
Combined Opinion