[Cite as State v. Holdcroft, 2010-Ohio-6262.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               WYANDOT COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 16-10-04

        v.

HENRY ALLEN HOLDCROFT,                                    OPINION

        DEFENDANT-APPELLANT.




                Appeal from Wyandot County Common Pleas Court
                           Trial Court No. 98-CR-0044

                                      Judgment Affirmed

                          Date of Decision: December 20, 2010




APPEARANCES:

        Henry Allen Holdcroft, Appellant

        Jonathan K. Miller for Appellee
Case No. 16-10-04



WILLAMOWSKI, P.J.

       {¶1} Defendant-appellant,       Henry     Allen    Holdcroft     (hereinafter

“Holdcroft”), appeals the judgment of the Wyandot County Court of Common

Pleas dismissing his petition for post-conviction relief and motions related to that

petition. For the reasons stated herein, we affirm.

       {¶2} On November 13, 1998, the Wyandot County Grand Jury indicted

Holdcroft on three counts, including: count one of aggravated arson in violation of

R.C. 2909.02(A)(3), a first degree felony; count two of complicity to commit

aggravated arson in violation of R.C. 2923.03(A)(1), a first degree felony; and

count three of arson in violation of R.C. 2909.03(A)(4), a third degree felony. The

charges stemmed from an incident where Holdcroft hired a third party to set fire to

his then-wife’s automobile and residence.

       {¶3} On June 9, 1999, the State filed a motion to dismiss count two of the

indictment on the basis that the charge was an allied offense of similar import to

count one, aggravated arson. The trial court granted the State’s motion to dismiss

count two on June 25, 1999.

       {¶4} On July 6-9, 1999, a jury trial was held on the remaining two counts

of the indictment against Holdcroft. The jury returned guilty verdicts on both

counts. On July 29, 1999, the trial court filed a judgment entry of conviction.



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      {¶5} On September 10, 1999, the trial court sentenced Holdcroft to ten

years imprisonment on count one, aggravated arson, and five years imprisonment

on count three, arson. The trial court ordered “that the sentence imposed for

Count Three shall be served consecutively to the sentence imposed in Count One.”

(Sept 10 1999 JE, at 3). Holdcroft was ordered to make restitution to the victim,

Kathy Hurst, or the insurance carrier, in the sum of $5,775.00, and $400.00 to Eric

Goodman. The trial court also notified Holdcroft “that a period of post-release

control shall be imposed,” and that if he violated his post-release control further

restrictions upon his liberty could follow as a consequence. (Id.). Holdcroft was

also taxed with the costs of prosecution and all other fees permitted under R.C.

2929.18(A)(4).

      {¶6} On September 14, 1999, Holdcroft filed a notice of appeal pro se.

The trial court appointed appellate counsel, and the appeal was assigned. On

appeal, Holdcroft asserted one assignment of error arguing that his convictions

were against the manifest weight of the evidence. State v. Holdcroft (Mar. 31,

2000), 3rd Dist. No. 16-99-04, at *1.         This Court subsequently overruled

Holdcroft’s assignment of error, sustained the State’s assignment of error, and

upheld the convictions.

      {¶7} While his direct appeal was pending before this Court, Holdcroft

filed a motion for the appointment of counsel in order to pursue post-conviction


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relief.    The trial court granted Holdcroft’s motion and appointed counsel on

February 3, 2000.

          {¶8} On May 5, 2000, Holdcroft, pro se, filed a notice of appeal to the

Ohio Supreme Court from this Court’s March 31, 2000 decision.             The Ohio

Supreme Court, however, declined review. State v. Holdcroft (2000), 89 Ohio

St.3d 1464, 732 N.E.2d 997.

          {¶9} On June 9, 2000, Holdcroft, through appointed appellate counsel,

filed a motion for a new trial, along with a motion to withdraw as appellate

counsel. The trial court granted the motion to withdraw but denied the motion for

a new trial. On June 26, 2000, Holdcroft filed a motion for judicial release, which

the trial court also denied.

          {¶10} On July 13, 2006, Holdcroft filed a “motion to vacate or set aside

and modify sentence pursuant to R.C. 2945.25(A) & Crim.R. 52(B).” On July 20,

2006, the trial court overruled the motion, finding it was untimely and lacked

substantive merit “as the Defendant was not convicted of allied offenses of similar

import. There were separate and distinct felonies committed by the Defendant,

one involving a dwelling and the other involving an automobile.”

          {¶11} On August 16, 2006, Holdcroft, pro se, filed a notice of appeal from

the trial court’s denial of his motion.         On appeal, Holdcroft argued that his

sentence was void because he was sentenced on two offenses that were allied


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offenses of similar import. This Court overruled Holdcroft’s assignment of error,

finding that his motion was an untimely post-conviction motion, and, under a plain

error analysis, that the offenses were not allied offenses of similar import. State v.

Holdcroft, 3d Dist. No. 16-06-07, 2007-Ohio-586.

       {¶12} On December 11, 2009, the State filed a motion to correct

Holdcroft’s sentence pursuant to R.C. 2929.191. On December 30, 2009, the State

filed a motion for a de novo sentencing hearing to correct Holdcroft’s sentence

pursuant to State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d

958. On January 5, 2010, the trial court granted the State’s motion for a de novo

sentencing hearing.

       {¶13} On January 26, 2010, the trial court conducted a de novo sentencing

hearing. Holdcroft’s sentence was journalized in the trial court’s February 2, 2010

Judgment Entry. The trial court sentenced Holdcroft to ten years on count one and

five years on count three.      The trial court further ordered that the term of

imprisonment imposed on count three be served consecutively to the term of

imprisonment imposed on count one for an aggregate term of fifteen years. The

trial court notified Holdcroft that he would be subject to five years of mandatory

post-release control as to count one and three years of optional post-release control

as to count three after imprisonment. The trial court noted that the terms of post-

release control would not be served consecutively to each other. The trial court


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also ordered that Holdcroft “pay restitution to Kathy Hurst, or the insurance

carrier, in the sum of $5,775.00; and make restitution to Eric Goodman in the

amount of $400.00.” (Feb. 2, 2010 JE, at 5).

        {¶14} On February 12, 2010, Holdcroft filed a notice of appeal from the

trial court’s judgment entry of sentence. On May 26, 2010, while the appeal was

pending, Holdcroft, pro se, filed a petition for post-conviction relief and various

motions relating to that petition.1              The trial court noted that Holdcroft was

appointed counsel to handle the direct appeal of his conviction which was pending

before this Court. The trial court subsequently dismissed Holdcroft’s petition for

post-conviction relief and stated that the “appeal is presently pending before the

Third Appellate District and accordingly this Court (the trial court) lacks

jurisdiction to rule on the matters raised in the Defendant’s Motions.” (May 27,

2010 JE at 1).

        {¶15} Holdcroft now appeals the judgment of the trial court dismissing his

petition for post-conviction relief and his motions related to that petition and

asserts the following four assignments of error for our review.

                                   First Assignment of Error



1
 These motions were a Motion for Change of Venue which essentially requested that a court in a different
county, other than Wyandot County, hear the merits of his post-conviction relief petition, a Motion for
Expert Assistance and a Motion for Appointment of Counsel both relating to his post-conviction relief
petition.


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       The trial court violated the appellants [sic] 6th, and 14th
       Amendment rights to [sic] U.S. Constitution, violation of Pro.
       Cond. R. 1.7, violation of ineffective assistance of counsel due to
       the conflict of interest.

                          Second Assignment of Error

       Appellant [sic] counsel Howard A. Elliott, rendered ineffective
       assistance of counsel in violation of the 6th Amendment to the
       U.S. Constitution and Article I, Section 10, 16 of the Ohio
       Constitution.



                           Third Assignment of Error

       Appellants [sic] constitutional rights were violated when the
       Judge, Clerk of Courts and the Assistant Prosecuting Attorney
       failed to respond to the Administrative Judgment as showed [sic]
       in exhibit A and B, and Appellants [sic] constitutional rights
       were violated when the United States of America, State of Ohio,
       County of Wyandot and Wyandot County Prosecuting Attorney
       failed to respond to the Conditional Acceptance for Value
       (CAFV) as exhibit C.

                          Fourth Assignment of Error

       The trial court violated the Appellant’s constitutional rights, and
       showed bias and prejudice by not contacting the Ohio Supreme
       Court to have them appoint a new judge to rule on the violations
       of conflict of interest, and Pro. Cond. R. 1.7 and violation of
       cannon 3(3)(C), and other violations, by violating the Fifth and
       Fourteenth Amendment to the U.S. Constitution and Section 16,
       Article I, [sic] Ohio Constitution and due process.

       {¶16} To facilitate our review, we elect to address the assignments of error

out of order.



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                                    Third Assignment of Error

         {¶17} Upon reviewing his third assignment of error, we are unable to

discern the precise nature Holdcroft’s complaint because he references several

documents which are outside of the record and not reviewable by this Court.

However, we can glean from the record that Holdcroft’s primary contention within

the purview of our review focuses on the trial court’s Judgment Entry

“dismissing” his petition for post-conviction relief and the motions related to that

petition.2

         {¶18} After reviewing the trial court’s decision to dismiss Holdcroft’s

petition for post-conviction relief, we initially note that the trial court incorrectly

stated that it lacked jurisdiction to rule on the petition. Appellate Rule 6 provides

that a trial court and an appellate court have concurrent jurisdiction to review a

judgment of conviction. Specifically contemplated by App. R. 6 is the trial court’s

ability to rule on a petition for post-conviction relief while a direct appeal of the

judgment imposing his conviction and sentence is pending before the appellate

court. Therefore, the trial court did have concurrent jurisdiction with this Court to

review Holdcroft’s petition for post-conviction relief and the motions relating to

that petition.



2
  We note that Holdcroft attached the trial court’s May 27, 2010 Judgment Entry to his notice of appeal in
this case.


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      {¶19} However, on September 13, 2010, this Court dismissed Holdcroft’s

direct appeal of the trial court’s order of conviction and sentence in State v.

Holdcroft, 3rd Dist. No. 16-10-01, 2010-Ohio-4290. As the basis for dismissing

the case, we determined that the Judgment Entry imposing Holdcroft’s sentence

and conviction did not constitute a final appealable order.      (Id. at ¶19).   In

particular, the Judgment Entry failed to allocate the amount of restitution between




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the victim, Kathy Hurst, and the insurance company. (Id.). As previously stated

by this Court, an order of restitution must set forth the amount or method of

payment as to each victim receiving restitution in order to be a final appealable

order. See State v. Kuhn, 3rd Dist. No. 4-05-23, 2006-Ohio-1145, ¶ 8; see also

State v. Hartley, 3rd Dist. No. 14-09-42, 2010-Ohio-2018, ¶ 5. Because Section

3(B)(2), Article IV of the Ohio Constitution limits this Court’s jurisdiction to

reviewing “final appealable orders,” we remanded Holdcroft’s appeal of his

conviction and sentence to the trial court to resolve the restitution issue.

       {¶20} Section 2953.21 of the Revised Code governs the filing of a petition

for post-conviction relief and states that “any person convicted of a criminal

offense * * * may file a petition in the court that imposed sentence, stating that the

grounds for relief relied upon, and asking the court to vacate or set aside judgment

or sentence or to grant other appropriate relief.” As stated above, the judgment

entering Holdcroft’s conviction and sentence did not constitute a final appealable

order. Accordingly, because the trial court had yet to file a final order entering

Holdcroft’s conviction and sentence, Holdcroft’s filing for a petition for post-relief

conviction is premature.

       {¶21} Although, we found that the trial court incorrectly stated that it did

not have jurisdiction to rule on Holdcroft’s petition for post-conviction relief, we

conclude the trial court was correct in dismissing Holdcroft’s petition and the


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motions related to that petition because a final order of conviction and sentence

had yet to be filed in this case.

       {¶22} Holdcroft’s third assignment of error is, therefore, overruled.

                       First and Second Assignments of Error

       {¶23} In his first and second assignments of error, Holdcroft argues that

both his trial counsel and his appellate counsel, who handled his first appeal in

2000, were ineffective.      However, in light of our determination in State v.

Holdcroft, 3rd Dist. No. 16-10-01, 2010-Ohio-4290 that the trial court’s order of

conviction and sentence did not constitute a final appealable order, these issues are

premature for our review. Accordingly, we find that these assignments of error

are rendered moot and therefore overruled.

                             Fourth Assignment of Error

       {¶24} In his fourth assignment of error, Holdcroft contends that the Judge

should have recused herself from deciding this case.          As the basis for his

contention, Holdcroft argues that the Judge had a conflict of interest rendering her

both prejudiced and biased, and therefore warranting her disqualification from

deciding his case.

       {¶25} The determination of a claim that a common pleas judge is biased or

prejudiced is within the exclusive jurisdiction of the Chief Justice of the Supreme

Court of Ohio, or his designee. See Jones v. Billingham (1995), 105 Ohio App. 3d


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8, 11, 663 N.E.2d 657 citing Section 5(C), Article IV of the Ohio Constitution.

See also Adkins v. Adkins (1988), 43 Ohio App.3d 95, 539 N.E.2d 686.

       {¶26} Section 2701.03 of the Revised Code sets forth the procedure

available to a litigant in asserting a claim that a common pleas judge is biased or

prejudiced. Specifically, R.C. 2701.03(A) provides, in relevant part:

       If a judge of the court of common pleas allegedly is interested in
       a proceeding pending before the court, allegedly is related to or
       has a bias or prejudice for or against a party to a proceeding
       pending before the court or a party's counsel, or allegedly
       otherwise is disqualified to preside in a proceeding pending
       before the court, any party to the proceeding or the party's
       counsel may file an affidavit of disqualification with the clerk of
       the supreme court in accordance with division (B) of this section.

R.C. 2701.03(A).

       {¶27} As this Court has previously stated on this issue in light of the

authority cited above, “a court of appeals is without the authority to determine

whether a judge of the court of common pleas is, or should be, disqualified from

presiding over a case.” State v. Milligan, 3rd Dist. No. 16-08-04, 2008-Ohio-

4509, ¶ 11. Accordingly, this Court is without the authority to determine the

disqualification of a common pleas court judge and Holdcroft’s fourth assignment

of error is overruled.




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       {¶28} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                               Judgment Affirmed

ROGERS and PRESTON, J.J., concur.

/jlr




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