[Cite as State v. Mahr, 2018-Ohio-3443.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                           LAKE COUNTY, OHIO


STATE OF OHIO,                                      :      MEMORANDUM OPINION

                 Plaintiff-Appellee,                :
                                                           CASE NO. 2017-L-147
        - vs -                                      :

FREDRICK MAHR,                                      :

                 Defendant-Appellant.               :


Criminal Appeal from the Painesville Municipal Court, Case No. 2016 CR 01983.

Judgment: Appeal dismissed.


Ron M. Graham, 8039 Broadmoor Road, Suite 21, Mentor, OH 44060 (For Plaintiff-
Appellee).

Michael C. Lucas, Wiles and Richards, 37265 Euclid Avenue, Willoughby, OH 44094
(For Defendant-Appellant).


DIANE V. GRENDELL, J.

        {¶1}     Appellant, Fredrick Mahr, appeals from the trial court’s Judgment Entry,

sentencing him for violations of the Leroy Township Zoning Regulations.

        {¶2}     On August 25, 2016, an “Affidavit, on Complaint” was filed in the

Painesville Municipal Court, signed by the Leroy Township Zoning Inspector, which

alleged three violations of the Leroy Township Zoning Regulations: “Violation 1: Junk

Vehicles” in violation of Section 9.12; “Violation 2, Junk Refuse, Scrap Metal and Junk

for Storage” in violation of Section 9.10; and “Violation 3: Outdoor Storage of More
th[a]n 5 Vehicles,” in violation of Section 16.04.4.

       {¶3}   A December 12, 2016 Judgment Entry, a form entry, stated that Mahr

entered a plea of no contest “to charges of” and listed three violations: “Maint Viol MM,”

“Maint Viol MM,” and “Storage of Veh MM.” One “Maint Viol” and the “Storage of Veh”

were circled (indicating a plea to these offenses), while the remaining “Maint Viol” was

crossed out. No description or numbers of the Sections violated were included. While

the court’s online docket indicates dismissal of one maintenance violation, a review of

Mahr’s brief seemed to indicate his belief that he was convicted of all three violations.

As to the sentence, the court ordered a fine of $200 per day with “all fines suspended if

in compliance by 6-15-17.”

       {¶4}   Subsequently, additional proceedings were conducted to determine

compliance.    An additional, handwritten notation was added to the bottom of the

December 12, 2016 Entry and reads: “10/2/17: Imposition of sentence - $150/day f/n

until compliance,” followed by what appears to be the judge’s initials or signature. A

copy of the Entry was made and docketed under a separate docket number, but no new

time stamp was included on that portion of the entry or the newly docketed copy.

       {¶5}   For the following reasons, this court lacks jurisdiction to consider the

present appeal.

       {¶6}   “The Ohio Constitution grants courts of appeals jurisdiction ‘to review and

affirm, modify, or reverse judgments or final orders.’” Smith v. Chen, 142 Ohio St.3d

411, 2015-Ohio-1480, 31 N.E.3d 633, ¶ 8, quoting Ohio Constitution, Article IV, Section

3(B)(2); R.C. 2953.02 (a court of appeals only possesses jurisdiction to hear an appeal

from a criminal case if the appeal is from a “judgment or final order”); R.C. 2505.02.




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       {¶7}   In a criminal case, to constitute a final, appealable order under R.C.

2505.02, a judgment of conviction and sentence must satisfy the substantive provisions

of Crim.R. 32(C) and include: (1) the fact of conviction; (2) the sentence; (3) the judge’s

signature; and (4) the time stamp indicating the entry upon the journal by the clerk.

State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142, paragraph one

of the syllabus.

       {¶8}   Here, the court’s entry is missing multiple elements necessary for a final

order. First, the fact of conviction is not properly documented in the court’s December

12, 2016 Entry. The entry “must either fully describe the crime for which the accused

was convicted or set forth the Revised Code section number under which he was

convicted.” Cleveland v. U.S. Bank, N.A., 72 N.E.3d 1123, 2016-Ohio-7402, ¶ 10 (8th

Dist.), citing State v. Tanner, 10th Dist. Franklin Nos. 91AP-263 and 91AP-651, 1991

WL 281410, *9 (Dec. 31, 1991), citing Braxton v. Maxwell, 1 Ohio St.2d 134, 136, 205

N.E.2d 397 (1965).

       {¶9}   Here, the Entry lists two maintenance offenses in the same wording, with

only one circled, although the Complaint charged these as violations of two separate

sections of the Zoning Regulations. Thus, it is not evident for which conduct and crime

Mahr was convicted.     This has been held inadequate to create a final judgment in

similar circumstances, where a judgment of conviction provided only a generic listing of

a “building code violation” when the defendant was charged with multiple code

violations under various sections, since the “fact of conviction” was not stated consistent

with Crim.R. 32(C). U.S. Bank at ¶ 11-12.

       {¶10} Further, while one count is crossed out on the entry of conviction, we




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question whether this adequately disposed of that charge. Where a charge that does

not terminate in a conviction is not disposed of upon conviction of other offenses and

has not otherwise “been terminated by a journal entry,” this is considered a “hanging

charge” which “prevent[s] the conviction from being a final order under R.C.

2505.02(B).” State v. Mullens, 4th Dist. Lawrence No. 17CA7, 2018-Ohio-1594, ¶ 11.

The lack of clarity is evident since, as noted above, it appears from his brief that Mahr

believes he was convicted of all three violations stated in the Complaint. The foregoing

concerns are especially problematic given that the court has ordered a continuing

financial sanction for being out of compliance with the Zoning Regulations while it is not

even clear from the court’s Entry which sections Mahr was found to be violating.

      {¶11} We also note that it is unclear how many counts for which Mahr was

convicted.    He contends that he was ordered to pay an ongoing fee for multiple

violations, improperly, when he intended to enter a no contest plea to only three distinct

offenses.    The Judgment Entry does not indicate the dates for the violation or the

number of counts for which he was convicted, although it fines him indefinitely for lack

of compliance.    This is a concern in the present matter, where the Leroy Zoning

Regulations provide that “[e]ach and every day during which such illegal * * * use

continues may be deemed a separate offense,” language which was included in the

Complaint. Section 5.2. Given all of the foregoing, we find a lack of a final order on the

grounds of failure to state the fact of conviction. See Cleveland v. Robshir Properties,

L.L.C., 8th Dist. Cuyahoga No. 104340, 2016-Ohio-191, ¶ 19 (a final order did not exist

when the standardized judgment entry listed the generic building code violation without

listing the specific code section, “did not specify the dates of violations, the number of




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counts [the defendant] was convicted of, and imposed a $500 fine without specifying

whether the fine was for one count or for [multiple] counts”).

       {¶12} Finally, while there was a time stamp indicating entry of the Judgment

Entry with the conviction and conditional sentence on December 12, 2016, the final

imposition of sentence, ordered on October 2, 2017 at the bottom of the preexisting

Entry, was not time stamped as required under Lester.

       {¶13} Given the trial court’s failure to issue a final order, this court is without

jurisdiction to hear the present appeal. Accordingly, the appeal is hereby, sua sponte,

dismissed for lack of a final appealable order.



THOMAS R. WRIGHT, P.J.,

COLLEEN MARY O’TOOLE, J.,

concur.




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