[Cite as State v. Evans, 2012-Ohio-1120.]


STATE OF OHIO                     )                       IN THE COURT OF APPEALS
                                  )ss:                    NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                  )

STATE OF OHIO                                             C.A. No.     11CA0020-M

        Appellee

        v.                                                APPEAL FROM JUDGMENT
                                                          ENTERED IN THE
JOSEPH R. EVANS                                           COURT OF COMMON PLEAS
                                                          COUNTY OF MEDINA, OHIO
        Appellant                                         CASE No.   08-CR-0536

                                 DECISION AND JOURNAL ENTRY

Dated: March 19, 2012



        CARR, Judge.

        {¶1}     Appellant, Joseph Evans, appeals the order of the Medina County Court of

Common Pleas denying his petition for post-conviction relief. This Court dismisses the appeal

as it is not taken from a final, appealable order.

                                                     I.

        {¶2}     On December 3, 2008, the Medina County Grand Jury indicted Evans on three

counts of rape of a minor under the age of thirteen in violation of R.C. 2907.02(A)(1)(b), felonies

of the first degree, and one count of pandering obscenity of a minor in violation of R.C.

2907.321(A)(5), a felony of the fourth degree.            The alleged victim of the aforementioned

offenses was Evans’ daughter, M.E. Evans pleaded not guilty to the charges at his arraignment.

On June 29, 2009, Evans withdrew his plea of not guilty and entered a plea of no contest to the

pandering obscenity charge.         The remaining three counts were tried to a jury.     The jury

subsequently found Evans guilty of two counts of rape of a minor under the age of thirteen and
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one count of the lesser-included offense of gross sexual imposition, in violation of R.C. 2907.05.

Evans was sentenced to consecutive terms on all four counts, totaling twenty-two and a half

years in prison. The sentencing entry was journalized on July 31, 2009.

       {¶3}    Evans filed a direct appeal to this Court. On appeal, Evans argued that trial

counsel provided ineffective assistance of counsel; that his convictions were not supported by

sufficient evidence and were against the manifest weight of the evidence; and that the trial court

erred in imposing consecutive prison sentences. On August 2, 2010, this Court affirmed the trial

court’s judgment. State v. Evans, 9th Dist. No. 09CA0049-M, 2010-Ohio-3545.

       {¶4}    On July 28, 2010, while his direct appeal was still pending, Evans filed a pro se

petition for post-conviction relief pursuant to R.C. 2953.21. The trial court appointed counsel to

represent Evans on July 29, 2010. Evans supplemented his petition on September 23, 2010, and

October 14, 2010. A hearing was held on Evans’ petition over the course of three days on

October 15, 2010, December 17, 2010, and January 21, 2011. The trial court issued a journal

entry denying the petition on January 26, 2011.

       {¶5}    On February 25, 2011, Evans filed his notice of appeal. On appeal, Evans raises

two assignments of error.

                                                  II.

                                ASSIGNMENT OF ERROR I

       THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY FAILING TO
       MAKE AND FILE WRITTEN FINDINGS OF FACT AND CONCLUSIONS OF
       LAW, AS REQUIRED UNDER R.C. 2959.21(G), WHERE THE TRIAL
       COURT DID NOT FIND GROUNDS FOR RELIEF AND DENIED THE
       DEFENDANT’S PETITION FOR POSTCONVICTION RELIEF.

                                ASSIGNMENT OF ERROR II

       THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY DENYING
       DEFENDANT’S PETITION FOR POSTCONVICTION RELIEF WHERE
       TRIAL COUNSEL PROVIDED CONSTITUTIONALLY INEFFECTIVE
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       ASSISTANCE BY (1) FAILING TO LOCATE AND SUBPOENA AN
       ESSENTIAL DEFENSE WITNESS OR TO USE THE INFORMATION
       PROVIDE[D] BY THAT DEFENSE WITNESS TO IMPEACH THE ALLEGED
       VICTIM AND HER MOTHER ON CROSS-EXAMINATION AT TRIAL; AND
       (2) FAILING TO ADVISE DEFENDANT OF A PLEA BARGAIN OFFER
       MADE BY THE STATE PRIOR TO TRIAL.

       {¶6}    In his first assignment of error, Evans argues that the trial court did not make the

required findings of fact and conclusions of law in denying his petition for post-conviction relief.

In his second assignment of error, Evans argues that the trial court erred in denying his petition

for post-conviction relief. We dismiss the appeal as the trial court’s journal entry does not

constitute a final, appealable order.

       {¶7}    R.C. 2953.21(G) states, “If the court does not find grounds for granting relief, it

shall make and file findings of fact and conclusions of law and shall enter judgment denying

relief on the petition.” “[T]he general purpose of R.C. 2953.21 is to provide judicial review of

the allegations raised in a prisoner’s petition, in order to provide a remedy for violation of

constitutional rights.” State v. Lester, 41 Ohio St.2d 51, 56 (1975). The Supreme Court of Ohio

has articulated the following policy considerations in discussing the requirement that a trial court

make findings in denying a petition for post-conviction relief:

       The obvious reasons for requiring findings are “*** to apprise petitioner of the
       grounds for the judgment of the trial court and enable the appellate courts to
       properly determine appeals in such cause.” Jones v. State, 8 Ohio St.2d 21, 22
       (1966). The existence of findings and conclusions are essential in order to
       prosecute an appeal. Without them, a petitioner knows no more than [that] he lost
       and hence is effectively precluded from making a reasoned appeal. In addition,
       the failure of a trial judge to make the requisite findings prevents any meaningful
       judicial review, for it is the findings and the conclusions which an appellate court
       reviews for error.

State v. Mapson, 1 Ohio St.3d 217, 219 (1982).

       {¶8}    This Court has noted that “by squarely addressing [the] constitutional claim, the

trial court’s order constituted adequate findings of fact and conclusions of law.” State v. Fischer,
                                                4


9th Dist. No. 18204, 1997 WL 537661, *2, fn.2 (August 20, 1997). A judgment entry filed

without findings of fact and conclusions of law is not a final, appealable order. State v. Beard,

9th Dist. No. 07CA009240, 2008-Ohio-3722, ¶ 2, citing Mapson, 1 Ohio St.3d at 218. This

Court’s position that a trial court’s failure to make the statutorily required findings renders the

order non-final rests upon our interpretation of Mapson. The controversy in Mapson arose when

a trial court dismissed a petition for post-conviction relief without making findings of fact and

conclusions of law. More than two months after the trial court’s entry was journalized, the

petitioner filed a notice of appeal. The Court of Appeals dismissed the appeal on the basis that it

was not timely filed. Seven months after the trial court’s order dismissing the petition was filed,

the trial court issued findings of fact and conclusions of law in support of its decision. The

Supreme Court granted the petitioner’s motion for leave to appeal. The Supreme Court held that

“R.C. 2953.21 mandates that a judgment denying post-conviction relief include findings of fact

and conclusions of law, and that a judgment entry filed without such findings is incomplete and

it thus does not commence the running of the time period for filing an appeal therefrom.” Id. at

218. While the Mapson decision contains language suggesting that the court implicitly agreed

with prior cases stating that a trial court’s failure to make the statutorily required findings was

prejudicial error, the court’s ultimate holding was that the court of appeals was incorrect in

concluding that the trial court’s dismissal order which lacked the statutorily required findings

commenced the running of the time period to perfect a timely appeal. Id. at 220. Thus, an order

which “does not include such statutorily mandated findings is incomplete and does not constitute

a final appealable order.” State v. Hickman, 9th Dist. No. 22279, 2005-Ohio-472, at ¶ 8, citing

Mapson, 1 Ohio St.3d at 218.
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       {¶9}    Turning to the instant matter, Evans filed his pro se petition on July 28, 2010.

After counsel was appointed, Evans supplemented his petition on September 23, 2010. In

support of his petition, Evans set forth two separate arguments relating to the performance of

trial counsel. First, Evans argued that trial counsel was ineffective for failing to call an essential

witness who had knowledge that the victim, M.E., had recanted on her allegations against Evans

prior to trial. Evans also argued that trial counsel was ineffective for failing to inform him of a

plea offer from the State made prior to the commencement of trial. Attached to the September

23, 2010 supplement were the affidavits of Evans’ wife, Nicole; Evans’ father, Alan; and the

man who allegedly had knowledge of M.E.’s recantation, Joshua Pettitt.                Evans further

supplemented his petition on October 14, 2010, in order to submit his own affidavit, as well as

the affidavit of Randy Bodosi, a close personal friend of Evans.

       {¶10} The hearing on the petition was set to go forward on October 15, 2010, at which

time Evans’ attorney and the prosecutor appeared in the trial court. The parties promptly agreed

to continue the hearing and no substantive issues were addressed. On November 16, 2010, the

trial court issued a journal entry indicating that the hearing scheduled for November 19, 2010,

had been continued to December 17, 2010, at the request of the State. The parties again

appeared in the trial court on December 17, 2010. At the outset of the hearing, counsel for Evans

stated, “The last time we were here in November, November 19th of 2010, we had our witness

Josh Pettitt here. He was subpoenaed at that time and had remained in contact with us. He is not

here today.” A review of the hearing transcript reveals that Evans presented the testimony of

Zsusanna Danielson, his mother, as well as Alan Evans, and Nicole Evans on December 17,

2010. The testimony at the hearing covered a range of issues, including both arguments Evans

made in support of his petition. Pettitt was again unavailable to testify when the parties appeared
                                                 6


before the trial court on January 21, 2011. Evans, however, did testify on his own behalf on the

final day of the hearing.

       {¶11} The trial court denied the petition on January 26, 2011. The trial court’s journal

entry denying the petition contained the following analysis:

       This hearing was originally scheduled for August 20, 2010, but was continued by
       the defense to September 24, 2010. The hearing for September 24, 2010 was
       continued by the defense in order to find a witness, Josh Petit (sic). The hearing
       was continued to November 19, 2010.

       That hearing was rescheduled to December 17, 2010 when testimony was heard.
       The defense asked for a continuance in order to find Josh Petit (sic) again which
       was granted. On January 21, 2011, the witness did not appear again.

       After hearing the testimony of the witnesses, the Court hereby finds that the
       defendant presented no evidence which convinced the Court that [trial counsel]
       was ineffective. Further, the defendant presented no witness that the victim
       recanted her testimony. The motion is denied.

The trial court’s judgment entry did not sufficiently apprise Evans of the basis for the denial of

his petition. As noted above, the purpose of requiring the trial court to include findings of fact

and conclusions of law in its judgment entry is to sufficiently apprise both the petitioner and the

potential appellate court of the grounds for its decision. Mapson, 1 Ohio St.3d at 219. While the

trial court appears to have discussed both issues Evans raised in support of his petition at the

conclusion of the hearing on January 21, 2011, it did not squarely address both issues in its

judgment entry denying the petition. The trial court did not discuss the nature of the evidence

presented at the hearing and make findings of fact, nor did it make conclusions of law. As the

trial court did not sufficiently apprise Evans of the reasons why the petition for post-conviction

relief was denied, the trial court’s journal entry does not constitute a final, appealable order. See

Hickman at ¶ 8.
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                                                III.

       {¶12} The trial court’s journal entry in this case is not a final, appealable order. The

appeal is dismissed.

                                                                               Appeal dismissed.




       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                       DONNA J. CARR
                                                       FOR THE COURT




BELFANCE, P. J.
CONCURRING IN JUDGMENT ONLY.

       {¶13} I concur in judgment out of deference to our precedent. However, if I were

writing without regard to stare decisis, I would conclude that the judgment in this case is final

and appealable. Although we have previously interpreted State v. Mapson, 1 Ohio St.3d 217

(1982), as requiring this Court to dismiss appeals from denials of post-conviction relief which

fail to include findings of fact and conclusions of law, see, e.g., State v. Beard, 9th Dist. No.
                                                 8


07CA009240, 2008-Ohio-3722, ¶ 2, I do not reach the same conclusion. There is language in

both Mapson and State v. Lester, 41 Ohio St.2d 51(1975), that supports the conclusion that the

failure of a trial court to include findings of fact and conclusions of law is prejudicial error, and

not a jurisdictional defect. Mapson at 219 (noting that the Court has implicitly agreed with cases

holding “that the failure of a trial judge to make the required findings is prejudicial error[]”);

Lester at 56 (concluding it was error when “the [trial] court did not make and file findings of fact

and conclusions of law * * * []”).


MOORE, J.
CONCURRING IN JUDGMENT ONLY.

       {¶14} I concur in judgment for the reasons expressed in Judge Belfance’s opinion.



APPEARANCES:

JOSEPH F. SALZGEBER, Attorney at Law, for Appellant.

DEAN HOLMAN, Prosecuting Attorney, and MATTHEW KERN, Assistant Prosecuting
Attorney, for Appellee.
