[Cite as State v. Pendleton, 2011-Ohio-2024.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                      JUDGES:
                                                   Hon. Sheila G. Farmer, P. J.
        Plaintiff-Appellee                         Hon. John W. Wise, J.
                                                   Hon. Julie A. Edwards, J.
-vs-
                                                   Case Nos. 10 CA 81 and 10 CA 82
RAYMOND PENDLETON

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                        Criminal Appeal from the Court of Common
                                                Pleas, Case Nos. 2008 CR 426 and 2008
                                                CR 498


JUDGMENT:                                       Affirmed



DATE OF JUDGMENT ENTRY:                         April 25, 2011



APPEARANCES:

For Plaintiff-Appellee                          For Defendant-Appellant

BRIAN T. WALTZ                                  ELIZABETH GABA
ASSISTANT PROSECUTOR                            1231 East Broad Street
20 South Second Street, 4th Floor               Columbus, Ohio 43205
Newark, Ohio 43055
Licking County, Case Nos. 10 CA 81 and 10 CA 82                                         2

Wise, J.

      {¶1}   Defendant-Appellant Raymond Pendleton appeals the July 16, 2010,

decision of the Licking County Common Pleas Court.

      {¶2}   Plaintiff-Appellee is the State of Ohio.

                      STATEMENT OF THE CASE AND FACTS

      {¶3}   The undisputed facts are as follows:

      {¶4}   On June 27, 2008, the State of Ohio obtained a nine-count indictment

against Defendant-Appellant Raymond Pendleton, along with a forfeiture specification

and attached firearm specification. (Case No. 2008CR426). Appellant was charged with

five counts of trafficking in crack cocaine (two first degree felonies, two second degree

felonies and one third degree felony), one count of trafficking in cocaine (F3), one count

of possession of crack cocaine (F3), one count of engaging in a pattern of corrupt

activity (Fl), and one count of possession of marijuana (MM).

      {¶5}   On July 25, 2008, the State obtained a two-count indictment against

Appellant for Intimidation (F3) and Retaliation (F3) (Case No. 2008CR498).

      {¶6}   As set forth in a Judgment Entry filed January 14, 2009, in Case No.

2008CR426, Appellant entered into an agreement with the State of Ohio where he

agreed to withdraw his former pleas of not guilty and plead guilty to Counts 1, 2, 3, 4

and 5 and also accept the forfeiture specification. In exchange, the State agreed to

dismiss counts 6, 7, 8, 9, and the gun specification with no recommendation as to

sentence.

      {¶7}   In further trade for the pleas of guilty, the State also agreed to dismiss

count 1 in case number 2008CR498.
      Licking County, Case Nos. 10 CA 81 and 10 CA 82                                      3
r,.


            {¶8}   On January 14, 2009, Appellant was sentenced in Case No. 2008CA426

      to two years on Count 1, three years on Count 2, three years on Count 3, one year on

      Count 4, and two years on Count 5, to run consecutively, for a total of 11 years in

      prison.

            {¶9}   In Case No. 2008CR498, Appellant was sentenced to three years on the

      Retaliation charge, to run concurrent to his sentence in Case No. 2008CR426.

            {¶10} On March 27, 2009, Appellant filed two Notices of Appeal in Case No.

      2008CR426 (Case Nos. 2009CA36 and 2009CA37)1 Appellant also filed a Notice of

      Appeal in Case No. 2009CA498 (Case No. 2009CA38), with a Motion for Leave to File

      a Delayed Appeal. This Court granted the Motion for Leave on May 11, 2009.

            {¶11} On October 8, 2009, Appellant filed a Motion to Stay the Appeal

      Proceedings and for a Limited Remand with this Court, based on the State’s failure to

      file a motion to dismiss Counts 6, 7, 8, and 9 and the gun specification in Case No.

      2009CR426. The State also had never moved to dismiss Count 1 in 2008CR498.

            {¶12} On October 26, 2009, this Court dismissed the appeals of 2008CR426

      and 2008CR498, finding that this Court lacked subject matter jurisdiction, as the

      Judgment Entries in the underlying cases were not final appealable orders.

            {¶13} On October 8, 2009, Appellant also filed in the trial Court, in Case Nos.

      2008CR426 and 2008CR498, Defendant's Motion for a Final Appealable Order

      Pursuant to State ex rel Culgan v. Medina Cty. Court of Common Pleas, 119 Ohio St.3d

      535, 2008-Ohio-4699 and for a Correction of Sentence Pursuant to R.C. §2929.191.

            {¶14} On October 28, 2009, the State filed a response.

      1
       As the trial court filed both a Sentencing Entry and a Nunc Pro Tunc Sentencing Entry,
      Appellant filed separate appeals from each Entry.
Licking County, Case Nos. 10 CA 81 and 10 CA 82                                       4


      {¶15} On October 30, 2009, the State filed a Motion to Dismiss pursuant to the

plea agreement.

      {¶16} By Journal Entry filed October 30, 2009, the trial court dismissed counts 6,

7, 8, and 9 and the gun specification in 2008CR426, and Count 1 in 2008CR498.

      {¶17} On July 16, 2010, the trial court denied Defendant-Appellant's Motion for a

Final Appealable Order in both cases.

      {¶18} Appellant now appeals, raising the following assignments of error:

                            ASSIGNMENTS OF ERROR

      {¶19} “I. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE

APPELLANT'S SUBSTANTIVE AND PROCEDURAL DUE PROCESS RIGHTS UNDER

THE FIFTH AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION AND

ARTICLE ONE SECTION SIXTEEN OF THE OHIO CONSTITUTION BY SUMMARILY

DISMISSING THE APPELLANT'S "MOTION FOR A FINAL APPEALABLE ORDER".

THERE IS NO VALID "FINAL ORDER" IN THE APPELLANT'S CRIMINAL CASES 426

AND 498.

      {¶20} “II. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE

APPELLANT'S SUBSTANTIVE AND PROCEDURAL DUE PROCESS RIGHTS UNDER

THE FIFTH AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION AND

ARTICLE ONE SECTION SIXTEEN OF THE OHIO CONSTITUTION BY SUMMARILY

DISMISSING THE APPELLANT'S "MOTION FOR A FINAL APPEALABLE ORDER".

THE STATE DID NOT DISPOSE OF APPELLANT'S REMAINING COUNTS IN OPEN

COURT, THUS, THEY REMAIN PENDING AND THERE IS NO FINAL APPEALABLE

ORDER.
Licking County, Case Nos. 10 CA 81 and 10 CA 82                                          5


      {¶21} “III. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE

APPELLANT'S SUBSTANTIVE AND PROCEDURAL DUE PROCESS RIGHTS UNDER

THE FIFTH AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION AND

ARTICLE ONE SECTION SIXTEEN OF THE OHIO CONSTITUTION BY FAILING TO

PREPARE AND JOURNALIZE A FINAL ENTRY WITHIN THIRTY DAYS IN

VIOLATION OF RULE 7 OF THE RULES OF SUPERINTENDENCE, CIVIL RULE 58,

AND CRIMINAL RULE 32. APPELLANT IS ENTITLED TO BE DISCHARGED FROM

IMPRISONMENT.

      {¶22} “IV. THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT

APPELLANT, AS IT WAS WITHOUT AUTHORITY TO SENTENCE THE DEFENDANT

TO FIVE YEARS OF POST RELEASE CONTROL, AS SUCH, SAID SENTENCE IS

VOID AS A MATTER OF LAW AND MUST BE CORRECTED UNDER R.C. §2929.191.”

                                            I.

      {¶23} In Appellant’s first assignment of error, Appellant argues that the trial court

erred in denying his motion for a final appealable order in Case Nos. 2008CR426 and

2008CR498. We disagree.

      {¶24} Appellant herein argues that because the entry dismissing Counts 6, 7, 8,

9, and the firearm specification in Case No. 2008CR426 and Count 1 in Case No.

2008CR498 is separate from his sentencing entry, his sentencing entry does not

constitute a final appealable order.

      {¶25} “A judgment of conviction is a final appealable order under R.C. 2505.02

when it sets forth (1) the guilty plea, the jury verdict, or the finding of the court upon
Licking County, Case Nos. 10 CA 81 and 10 CA 82                                          6


which the conviction is based; (2) the sentence; (3) the signature of the judge; and (4)

entry on the journal by the clerk of court. (Crim.R. 32(C), explained.)”

       {¶26} We have examined Appellant's Sentencing Entry and find it meets the

above requirements of Crim.R 32(C).

       {¶27} The Ohio Supreme Court, in State ex rel. Davis v. Cuyahoga County Court

of Common Pleas, 127 Ohio St.3d 29, 2010-Ohio-4728, stated:

       {¶28} “[O]ur holding in State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893

N.E.2d 163, syllabus, “requires a full resolution of those counts for which there were

convictions. It does not require a reiteration of those counts and specifications for which

there were no convictions, but were resolved in other ways, such as dismissals, nolled

counts, or not guilty findings.” (Emphasis added.)”

       {¶29} Based on the foregoing, we find that because the entry dismissing the

other counts was not a sentencing entry or entry of conviction, it did not have to be

made part of the sentencing entry.

       {¶30} Once the trial court disposed of the remaining counts by Judgment Entry,

Appellant’s Judgment Entry of conviction became a final appealable order. Accordingly,

we do not find error in the trial court’s refusal to prepare a new sentencing order for

Appellant.

       {¶31} Based on the foregoing, we find Appellant’s first assignment of error not

well-taken and hereby overrule same.
Licking County, Case Nos. 10 CA 81 and 10 CA 82                                       7


                                                II.

       {¶32} In his second assignment of error, Appellant argues that the trial court

erred in not dismissing Counts 6, 7, 8, 9, and the firearm specification in Case No.

2008CR426 and Count 1 in Case No. 2008CR498 in open court. We disagree.

       {¶33} In support, Appellant cites Crim.R. 48(A) and R.C. §2941.33.

       {¶34} Initially, we note that R.C. §2941.33 concerns a prosecutor's dismissal, or

nolle prosequi, rather than a trial court dismissal.

       {¶35} R.C. § 2941.33 states:

       {¶36} “The prosecuting attorney shall not enter a nolle prosequi in any cause

without leave of the court, on good cause shown, in open court. A nolle prosequi

entered contrary to this section is invalid.”

       {¶37} Similarly, Crim.R. 48(A) provides:

       {¶38} “The state may by leave of court and in open court file an entry of

dismissal of an indictment, information, or complaint and the prosecution shall

thereupon terminate.”

       {¶39} “[T]he term ‘open court’ means that court is in session and the judge is on

the bench.” State v. Monroe, (June 14, 2000) 4th Dist. No. 99CA632, (citing Linden v.

Bates Truck Lines Inc., (1982) 4 Ohio App.3d 178, 180, 446 N.E.2d 1139).

       {¶40} Upon review, we find Appellant’s reliance on the above rule and statute to

be misplaced. The above rules and statutes were enacted to curb unlimited discretion

by the prosecutor’s office to enter a nolle prosequi without any court involvement. (See

Advisory Committee Notes to Fed.Crim.R. 48(A). See, also, Restatement of the Law,
Licking County, Case Nos. 10 CA 81 and 10 CA 82                                            8


Contracts (1932), Section 549 (the prosecutor can bargain to recommend dismissal but

not to secure dismissal)).

         {¶41} In the instant case, as evidenced by the January 14, 2009, sentencing

entry, the prosecutor did move to dismiss the subject counts in open court at Appellant’s

sentencing hearing on March 24, 2009. (T. at 40-41). We further find that Appellant

cannot demonstrate any prejudice as to the dismissal of the subject counts as such was

part of the negotiated plea agreement reached by the parties and that the dismissal of

these charges was to the benefit of Appellant. No confusion exists as to the trial court's

reason for dismissal of the charges.

         {¶42} Appellant’s second assignment of error is overruled.

                                              III.

         {¶43} In his third assignment of error, Appellant argues that the trial court failed

to journalize a final entry within thirty days and that such failure violated his substantive

and procedural due process rights. We disagree.

         {¶44} In support of this assignment of error, Appellant cites Rule 7 of the Rules

of Superintendence for the Courts of Ohio, which provides:

         {¶45} “(A) The judgment entry specified in Civil Rule 58 and in Criminal Rule 32

shall be filed and journalized within thirty days of the verdict, decree, or decision. If the

entry is not prepared and presented by counsel, it shall be prepared and filed by the

court.

         {¶46} Again, we find Appellant’s reliance misplaced as these Rules are not rules

of practice and procedure and create no substantive rights.                  The Rules of

Superintendence are intended only to serve as guidelines for the courts of Ohio, and
Licking County, Case Nos. 10 CA 81 and 10 CA 82                                           9


are not intended to create substantive rights on the part of the individual litigants in a

case. State v. Mahoney (1986), 34 Ohio App.3d 114, 517 N.E.2d 957; State v. Cornwell,

7th Dist. No. 00-CA-217, 2002-Ohio-5177. Ohio Sup.R. 40(A)(2) and (3).

       {¶47} Upon review, we find that in the instant case, the sentencing entry was in

fact timely filed. It was the motion to dismiss the remaining counts which should have

been filed earlier. Further, once the trial court received the motion to dismiss, it put its

entry on dismissing the remaining counts the same day.

       {¶48} Appellant’s third assignment of error is overruled.

                                            IV.

       {¶49} In his fourth assignment of error, Appellant argues that the trial court erred

in sentencing him to five years of post release control. We disagree.

       {¶50} Appellant claims that his sentence improperly imposes post release

control and is therefore void.

       {¶51} Upon review, we find that the trial court properly advised Appellant that he

was subject to a term of five years of post-release control both before and after

sentencing.
Licking County, Case Nos. 10 CA 81 and 10 CA 82                               10


      {¶52} Appellant’s fourth assignment of error is overruled.

      {¶53} For the foregoing reasons, the judgment of the Court of Common Pleas,

Licking County, Ohio, is affirmed.


By: Wise, J.

Farmer, P. J., and

Edwards, J., concur.



                                           ___________________________________


                                           ___________________________________


                                           ___________________________________

                                                               JUDGES
JWW/d 0407
Licking County, Case Nos. 10 CA 81 and 10 CA 82                                 11


             IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT




STATE OF OHIO                              :
                                           :
       Plaintiff-Appellee                  :
                                           :
-vs-                                       :         JUDGMENT ENTRY
                                           :
RAYMOND PENDLETON                          :
                                           :
       Defendant-Appellant                 :         Case Nos. 10 CA 81 & 10 CA 82




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Licking County, Ohio, is affirmed.

       Costs assessed to Appellant.




                                           ___________________________________


                                           ___________________________________


                                           ___________________________________

                                                              JUDGES
