[Cite as State v. Purdin, 2012-Ohio-752.]


                              IN THE COURT OF APPEALS OF OHIO
                                 FOURTH APPELLATE DISTRICT
                                       ADAMS COUNTY


State of Ohio,                        :
                                      :
      Plaintiff-Appellee,             :
                                      :          Case No. 11CA909
      v.                              :
                                      :          DECISION AND
Rocky Purdin,                         :          JUDGMENT ENTRY
                                      :
      Defendant-Appellant.            :          Filed: February 23, 2012
_____________________________________________________________________

                                            APPEARANCES:

Timothy Young, State Public Defender, and Craig M. Jaquith, Assistant State Public
Defender, Columbus, Ohio, for Appellant.

C. David Kelley, Adams County Prosecutor, and Mark R. Weaver, Adams County
Assistant Prosecutor, West Union, Ohio, for Appellee.
_____________________________________________________________________

Kline, J.:

        {¶1} Rocky Purdin appeals the judgment of the Adams County Court of Common

Pleas, which convicted him of murder. Purdin asserts four assignments of error. But,

because there is no final appealable order in this case, we lack jurisdiction to consider

the merits of Purdin’s appeal. Accordingly, we dismiss this appeal.

                                                 I.

        {¶2} On December 5, 2010, Purdin shot and killed his stepson, William Stunich,

during an altercation. The grand jury issued a three-count indictment against Purdin.

The case went to trial, and Purdin faced the following counts: Count I, murder, in

violation of R.C. 2903.02(A); Count II, felony murder, in violation of R.C. 2903.02(B);

and Count III, reckless homicide, in violation of R.C. 2903.041(A).
Adams App. No. 11CA909                                                                  2


       {¶3} Purdin admitted that he shot Stunich. Purdin, however, claimed that he did

so in self-defense. The jury began deliberating on a Friday evening, and it continued

deliberating until the early morning hours of the following Saturday. Eventually, the jury

informed the trial court that it had reached verdicts on Counts II and III, but the jury

could not reach a verdict on Count I. The jury found Purdin guilty of Count II (felony

murder) and guilty of Count III (reckless homicide). And because the jury was

deadlocked, the trial court declared a mistrial for Count I.

       {¶4} The trial court merged Counts II and III and sentenced Purdin to fifteen

years to life for felony murder. The trial court also imposed a three-year sentence,

based on a firearm specification, to be served consecutively to Purdin’s felony-murder

sentence. Thus, Purdin’s aggregate prison sentence is eighteen years to life.

       {¶5} Purdin appeals and asserts the following assignments of error: I. “Jury

deliberations that commenced at 9:00 p.m. on a Friday night and ended after 3:30 a.m.

the following Saturday morning violated Mr. Purdin’s rights as guaranteed by the Fifth,

Sixth, and Fourteenth Amendments to the United States Constitution, and by Sections

10 and 16, Article I of the Ohio Constitution.” II. “Prosecutorial misconduct deprived Mr.

Purdin of his constitutionally guaranteed right to a fair trial, in violation of the Fifth and

Fourteenth Amendments, to the United States Constitution and Section 10, Article I of

the Ohio Constitution.” III. “Mr. Purdin’s convictions are against the manifest weight of

the evidence, in violation of the Fifth and Fourteenth Amendments to the United States

Constitution and Section 16, Article I of the Ohio Constitution.” And, IV. “The trial court

erred in its instructions to the jury on the law of self-defense in a case in which the

defendant was assaulted in his own home, and thereby deprived Mr. Purdin of his right
Adams App. No. 11CA909                                                                     3


to a fair trial before a properly instructed jury, and his right to due process of law, as

guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the United States

Constitution, and Sections 10 and 16, Article I of the Ohio Constitution.”

                                               II.

       {¶6} Before we may consider the merits of Purdin’s appeal, we must determine

whether the trial court’s judgment entry is a final appealable order. “A court of appeals

has no jurisdiction over orders that are not final and appealable.” State v. Baker, 119

Ohio St.3d 197, 2008-Ohio-3330, at ¶6, citing Section 3(B)(2), Article IV, Ohio

Constitution; see, also, R.C. 2505.02. “If a court’s order is not final and appealable, we

have no jurisdiction to review the matter and must dismiss the appeal.” State v. Darget,

Scioto App. No. 09CA3306, 2010-Ohio-3541, at ¶4, citing Eddie v. Saunders, Gallia

App. No. 07CA7, 2008-Ohio-4755, at ¶11. “If the parties do not raise the jurisdictional

issue, we must raise it sua sponte.” Darget at ¶4, citing Sexton v. Conley (Aug. 7,

2000), Scioto App. No. 99CA2655; see, also, Whitaker-Merrell v. Geupel Co. (1972), 29

Ohio St.2d 184, 186.

       {¶7} “In a criminal matter, if a trial court fails to dispose of all the criminal

charges, the order appealed from is not a final, appealable order.” State v. Rothe,

Fairfield App. No. 2008 CA 44, 2009-Ohio-1852, at ¶9, citing State v. Robinson, Stark

App. No. 2007CA349, 2008-Ohio-5885; State v. Coffman, Delaware App. No.

06CAA90062, 2007-Ohio-3765. “In the case of a hung jury, jeopardy does not

terminate when a hung jury is discharged, rather the case against the defendant

remains pending until the remaining charge is either retried and/or dismissed with

prejudice.” Rothe at ¶9, citing Robinson at ¶11, in turn citing State v. Cole, Cuyahoga
Adams App. No. 11CA909                                                              4


App. No. 88722, 2007-Ohio-3076. “Unless a dismissal of the hung jury charge is

documented by a signed journal entry which is filed with the court, the order of the trial

court remains interlocutory and is not a final, appealable order.” Rothe at ¶9, citing

Robinson at ¶11, in turn citing State v. Huntsman (Mar. 13, 2000), Stark App. No.1999-

CA-282.

       {¶8} Here, as stated above, the trial court declared a mistrial on Count I because

the jury was deadlocked. In a March 14, 2011 judgment entry, the trial court stated that

“the jury advised the Court that [it was] unable to reach a unanimous decision as relates

to Count I.” The judgment entry also states that “the Court hereby declares a mistrial in

this matter solely to Count I of the indictment.” The March 14, 2011 Entry did not,

however, dismiss Count I against Purdin.

       {¶9} On March 18, 2011, the trial court filed a “Judgment Entry on Sentence,”

and, on April 4, 2011, the trial court filed an “Amended Judgment Entry on Sentence for

Purposes of Restitution.” The April 4, 2011 Amended Entry (1) imposes Purdin’s prison

sentence on Counts II and III and (2) orders restitution to various individuals and entities

to cover the victim’s funeral expenses. The Amended Entry does not reference Count I.

(The March 18, 2011 Entry does not reference Count I either.)

       {¶10} The record indicates that Count I against Purdin has neither been

dismissed nor retried. Consequently, Count I remains pending against Purdin.

Therefore, there is no final appealable order in this case, and we lack jurisdiction to

consider the merits of Purdin’s appeal. See Rothe at ¶10 (“[T]he record reflects that the

jury was unable to reach a verdict on Count Six of the indictment which charged

appellant with assault on a peace officer, and the court declared a mistrial. The charge
Adams App. No. 11CA909                                                           5


was not dismissed, nor was appellant retried on that charge. Based on the status of the

record, the charge of assault on a peace officer remains pending. Therefore, the

judgment appealed from is not a final, appealable order and the appeal must be

dismissed.”).

      {¶11} Accordingly, we dismiss Purdin’s appeal for lack of jurisdiction.

                                                                  APPEAL DISMISSED.
Adams App. No. 11CA909                                                            6


                                  JUDGMENT ENTRY

       It is ordered that the APPEAL BE DISMISSED. Appellant shall pay the costs
herein taxed.

      The Court finds there were reasonable grounds for this appeal.

     It is ordered that a special mandate issue out of this Court directing the
Adams County Court of Common Pleas to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure. Exceptions.

Abele, P.J. and McFarland, J.: Concur in Judgment and Opinion.


                                  For the Court


                                  BY:_____________________________
                                     Roger L. Kline, Judge




                                 NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
