[Cite as State v. Ellis, 2012-Ohio-437.]


                                         COURT OF APPEALS
                                        PERRY COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT


STATE OF OHIO                                   :      JUDGES:
                                                :
                                                :      Hon. Patricia A. Delaney, P.J.
                         Plaintiff-Appellee     :      Hon. Sheila G. Farmer, J.
                                                :      Hon. John W. Wise, J.
-vs-                                            :
                                                :      Case No. 11-CA-12
TOMMA M. ELLIS                                  :
                                                :
                                                :
                        Defendant-Appellant     :      OPINION



CHARACTER OF PROCEEDING:                            Appeal from the Perry County Court of
                                                    Common Pleas, Case No. 10-CR-0070


JUDGMENT:                                           DISMISSED



DATE OF JUDGMENT ENTRY:                             January 30, 2012



APPEARANCES:

For Appellant:                                         For Appellee:

JASON A. SARVER                                        JOSEPH A. FLAUTT
123 S. Broad St.                                       111 N. High St.
Suite 314                                              P.O. Box 569
Lancaster, OH 43130                                    New Lexington, OH 43764-0569
Delaney, J.

        {¶ 1} Defendant-Appellant Tomma M. Ellis appeals the August 26, 2011

judgment entry of the Perry County Court of Common Pleas. Plaintiff-Appellee is the

State of Ohio.

        {¶ 2} This case comes to us on the accelerated calendar. App. R. 11.1, which

governs accelerated calendar cases, provides in pertinent part:

        {¶ 3} “(E) Determination and judgment on appeal.

        {¶ 4} “The appeal will be determined as provided by App.R. 11.1. It shall be

sufficient compliance with App.R. 12(A) for the statement of the reason for the court's

decision as to each error to be in brief and conclusionary form.

        {¶ 5} “The decision may be by judgment entry in which case it will not be

published in any form.”

        {¶ 6} This appeal shall be considered in accordance with the aforementioned

rule.

                      STATEMENT OF THE FACTS AND CASE

        {¶ 7} On October 1, 2010, the Perry County Grand Jury indicted Appellant on

three counts of aggravated trafficking in drugs with forfeiture specifications in violation

of R.C. 2925.03(A)(1)(a) and (b). On February 16, 2011, Appellant pleaded guilty as

charged. The trial court accepted the pleas and ordered a presentence investigation.

        {¶ 8} On March 24, 2011, Appellant filed a motion to withdraw her guilty pleas.

A hearing was held on March 29, 2011. By judgment entry filed April 11, 2011, the

trial court denied the motion.
        {¶ 9} A sentencing hearing was held on April 21, 2011.             By termination

judgment entry filed April 27, 2011, the trial court sentenced Appellant to 18 months in

prison.

        {¶ 10}          On April 28, 2011, Appellant filed an appeal of the decision to

deny her pre-sentence motion to withdraw her guilty pleas in State of Ohio v. Tomma

M. Ellis, 5th Dist. No. 11-CA-9, 2011-Ohio-5216.

        {¶ 11}          Appellant filed a motion for judicial release on June 2, 2011. The

State filed a response to the motion. On June 20, 2011, the trial court denied the

motion for judicial release.

        {¶ 12}          Appellant then filed a motion to withdraw her guilty pleas on June

30, 2011. Appellant argued that the State breached the plea agreement by opposing

the motion for judicial release. At the plea hearing, the State acknowledged it would

remain neutral if there was an application for judicial release. Ellis at ¶ 13.

        {¶ 13}          Appellant filed a second motion for judicial release on August 2,

2011.

        {¶ 14}          On August 26, 2011, the trial court issued a judgment entry on

Appellant’s motion to withdraw her guilty pleas and motion for judicial release. The

entry stated in part:

        {¶ 15}          “The Court does not have jurisdiction to rule on these Motions due

to the Notice of Appeal filed in this case. The Entry, which was filed herein June 26,

2011 is, therefore, vacated.”

        {¶ 16}          Appellant filed a Notice of Appeal of the August 26, 2011

judgment entry on September 22, 2011.
       {¶ 17}        On October 7, 2011, this Court affirmed the trial court’s decision to

deny Appellant’s pre-sentence motion to withdraw her guilty pleas in Ellis.

       {¶ 18}        We now review Appellant’s appeal of the August 26, 2011

judgment entry. Appellant raises one Assignment of Error:

       {¶ 19}         “I.   THE    COURT      OF     COMMON        PLEAS      ABUSED       ITS

DISCRETION IN HOLDING THAT THE TRIAL COURT LACKED JURISDICTION TO

CONSIDER APPELLANT’S REQUEST(S) FOR JUDICIAL RELEASE.”

                                               I

       {¶ 20}        Before this Court can review the merits of Appellant’s Assignment

of Error, we must first determine whether we have jurisdiction to consider this matter.

In the August 26, 2011 judgment entry, the trial court determined it would make no

decision on Appellant’s motions for judicial release and motion to withdraw her guilty

pleas while Appellant’s direct appeal was pending.

       {¶ 21}        Appellant argues in her Assignment of Error that it was error for

the trial court to find that it lacked jurisdiction to rule on her motion for judicial release.

We note that Appellant does not raise argument regarding her motion to withdraw her

guilty pleas in her Assignment of Error or brief, so we focus only on Appellant’s

assigned error.

       {¶ 22}        We find the issue of a motion for judicial release filed while an

appeal is pending has been discussed by the Third District Court of Appeals in State

v. Cook, 3rd Dist. No. 14-04-36, 2005-Ohio-4448. In that case, the appellant was

convicted on two counts of non-support of defendants.                 Thirty days after his

conviction, the appellant filed a motion for judicial release.        The trial court held a
hearing on the motion and denied the appellant’s request. The trial court determined it

could take no action on the motion while the appellant’s appeal was pending.               It

determined it would hold the motion for ninety days and if the time elapsed and the

appellant’s appeal was still pending, it would deny the motion. Id. at ¶4-5, 24.

       {¶ 23}        The appellant argued the trial court “erred by refusing to rule on

his motion for judicial relief on the mistaken belief that it did not have jurisdiction.” Id.

at ¶25. The Third District held:

       {¶ 24}        “Generally, a trial court loses jurisdiction to take action in a case

after an appeal has been filed. State ex rel. Special Prosecutors v. Judges (1978), 55

Ohio St.2d 94, 97, 378 N.E.2d 162. It does retain jurisdiction, however, ‘over issues

not inconsistent with that of the appellate court to review, affirm, modify or reverse the

appealed judgment, such as the collateral issues like contempt, appointment of a

receiver and injunction.’ Id.

       {¶ 25}        “We need not reach the issue of the trial court's jurisdiction over

this matter, however, because the record before us does not reveal whether the trial

court ever issued an entry denying Cook's motion for judicial release after the allotted

ninety days had passed.         In the absence of an entry of judgment, we have no

jurisdiction over the trial court's action. A motion that is pending indicates there is no

final appealable order. Caruthers v. Caruthers, 4th Dist. No. 00CA09, 2001-Ohio-

2388.” Id. at ¶26-27.

       {¶ 26}           In our case, the August 26, 2011 judgment entry does not deny

(or grant) Appellant’s motions for judicial release. The entry in fact vacates the trial

court’s initial denial of Appellant’s first motion for judicial release. The effect of the
August 26, 2011 judgment entry is to determine that the motions for judicial release

will remain pending while Appellant’s direct appeal is before this Court. Appellant’s

direct appeal was resolved on October 7, 2011.

       {¶ 27}         Under these facts and based on the analysis of State v. Cook, we

find there is no final appealable order before this Court for our resolution.

       {¶ 28}         The appeal of the August 26, 2011 judgment of the Perry County

Court of Common Pleas is dismissed for lack of a final appealable order.

By: Delaney, P.J.

Farmer, J. and

Edwards, J. concur.



                                         HON. PATRICIA A. DELANEY



                                         HON. SHEILA G. FARMER



                                         HON. JULIE A. EDWARDS
                     IN THE COURT OF APPEALS FOR PERRY COUNTY, OHIO

                              FIFTH APPELLATE DISTRICT

STATE OF OHIO                               :
                                            :
                                            :
                     Plaintiff-Appellee     :
                                            :
-vs-                                        :   JUDGMENT ENTRY
                                            :
TOMMA M. ELLIS                              :
                                            :
                                            :   Case No. 11-CA-12
                    Defendant-Appellant     :




       For the reasons stated in our accompanying Opinion on file, the appeal of the

judgment of the Perry County Court of Common Pleas is dismissed. Costs assessed

to Appellant




                                          HON. PATRICIA A. DELANEY



                                          HON. SHEILA G. FARMER



                                          HON. JOHN W. WISE
