[Cite as State v. Heavilin, 2016-Ohio-1284.]


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

STATE OF OHIO                                         C.A. No.     15CA0034-M

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
DENNIS HEAVILIN                                       COURT OF COMMON PLEAS
                                                      COUNTY OF MEDINA, OHIO
        Appellant                                     CASE No.   11-CR-0175

                                  DECISION AND JOURNAL ENTRY

Dated: March 28, 2016



        MOORE, Judge.

        {¶1}      Defendant-Appellant, Dennis Heavilin, appeals from the March 18, 2015

sentencing entry of the Medina County Court of Common Pleas. For the following reasons, this

Court dismisses the appeal.

                                                 I.

        {¶2}      In 2012, Mr. Heavilin pleaded no contest to two counts of vandalism, one count

of inducing panic, and two counts of intimidation. Each of the five counts also included an

attendant firearm specification, and Mr. Heavilin likewise pleaded no contest to the five

specifications. The court accepted his plea and found him guilty of the five charges and

specifications.

        {¶3}      The court determined that Mr. Heavilin’s two vandalism charges were allied

offenses of similar import, as were his two counts of intimidation. After the State elected the

counts upon which it wished to proceed, the court sentenced Mr. Heavilin to six months in prison
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on his vandalism count, six months in prison on his inducing panic count, one year in prison on

his intimidation count, and “3 years on the Firearm Specification, R.C. 2941.145.” The court

ordered the former three counts to run concurrently with one another but consecutively to the

firearm specification for a total of four years in prison. It further ordered that “post release

control is optional in this case for a period of 3 years * * *.” Mr. Heavilin did not attempt to

appeal from the court’s sentencing entry.

       {¶4}    Subsequently, the State filed a motion to correct the imposition of Mr. Heavilin’s

post-release control. The trial court held a resentencing hearing at which it informed him that he

would be subject to a mandatory three years of post-release control on his intimidation count.

The court then issued a sentencing entry to that effect. Much like Mr. Heavilin’s original

sentencing entry, the entry ordered him to serve six months in prison on his vandalism count, six

months in prison on his inducing panic count, one year in prison on his intimidation count, and

“3 years on the Firearm Specification, R.C. 2941.145.”

       {¶5}    Mr. Heavilin now appeals from the court’s sentencing entry and raises two

assignments of error for our review.

                                               II.

                                ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED IN ISSUING A SUBSEQUENT SENTENCING
       ORDER THAT MODIFIED A PRIOR RULING INVOLVING POST RELEASE
       CONTROL[.]

                                ASSIGNMENT OF ERROR II

       WHEN A TRIAL JUDGE HAS BEEN RECUSED FROM A CASE, THAT
       JUDGE CANNOT HEAR SUBSEQUENT MOTIONS OR MAKE ANY
       FURTHER RULINGS ON THAT CASE FROM THE RECUSAL DATE. ANY
       SUCH RULING IS AN IMPERMISSIBLE RULING BY THE TRIAL COURT
       AND MUST BE VACATED.
                                                3


       {¶6}    In his assignments of error, Mr. Heavilin challenges the trial court’s authority to

issue a new sentencing entry as well as the contents of the entry. Because Mr. Heavilin has not

appealed from a final, appealable order, however, we cannot address the merits of his

assignments of error.

       {¶7}    This Court is obligated to raise sua sponte questions related to our jurisdiction.

Whitaker-Merrell Co. v. Geupel Constr. Co., Inc., 29 Ohio St.2d 184, 186 (1972). We only have

jurisdiction to hear appeals from final judgments.       Ohio Constitution, Article IV, Section

3(B)(2); R.C. 2501.02. In the absence of a final, appealable order, this Court must dismiss the

appeal for lack of jurisdiction. Lava Landscaping, Inc. v. Rayco Mfg., Inc., 9th Dist. Medina No.

2930-M, 2000 WL 109108, *1 (Jan. 26, 2000).

       {¶8}    Mr. Heavilin pleaded no contest to all of the charges in his indictment, including

five firearm specifications. The court accepted his plea and found him guilty of all five charges

and all five firearm specifications. After the court concluded that two of his charges should

merge as allied offenses, three charges and three firearm specifications remained. See State v.

Roper, 9th Dist. Summit Nos. 26631 & 26632, 2013-Ohio-2176, ¶ 11 (court cannot sentence

offender on attendant firearm specification “when the underlying offense upon which the

specification is predicated has merged with another allied offense”). The court, however, only

sentenced Mr. Heavilin on three charges and one firearm specification. Specifically, it ordered

him to serve a total of one year on his three charges and “3 years on the Firearm Specification,

R.C. 2941.145.” The court did not identify the specific firearm specification to which its three-

year sentence pertained; nor did it address the two remaining firearm specifications.

       {¶9}    This Court has “previously concluded that ‘a Journal Entry must dispose of all

charges brought in a single case against a defendant in order to be final.’” State v. Roberson, 9th
                                                  4


Dist. Lorain No. 09CA0099555, 2009-Ohio-6369, ¶ 6, quoting State v. Goodwin, 9th Dist.

Summit No. 23337, 2007-Ohio-2343, ¶ 13. “This analysis applies not only to the offense as

charged, but also to any specifications charged.”          State v. Hayes, 9th Dist. Lorain No.

99CA007416, 2000 WL 670672, *1 (May 24, 2000). Accordingly, “a journal entry that neglects

to sentence on a specification is [] not a final appealable order.” Id.

        {¶10} Because the trial court only sentenced Mr. Heavilin on one of his firearm

specifications and neglected to address his remaining two firearm specifications, the court’s

sentencing entry is not a final, appealable order.1 See Roberson at ¶ 6; Hayes at *1. This Court,

therefore, lacks jurisdiction to hear the merits of Mr. Heavilin’s attempted appeal.

                                                 III.

        {¶11} Because Mr. Heavilin has not appealed from a final, appealable order, this Court

cannot consider the merits of his assignments of error. The attempted appeal is dismissed for

lack of jurisdiction.

                                                                                 Appeal dismissed.




1
  We acknowledge that R.C. 2929.14(B)(1)(b) does not permit a trial court to impose more than
one prison term on firearm specifications “for felonies committed as part of the same act or
transaction.” If, in fact, the court determined that Mr. Heavilin’s felonies were committed as part
of the same act or transaction, it would have been inappropriate for the court to sentence him on
more than one of his firearm specifications. See R.C. 2929.14(B)(1)(b). It is not clear from the
record, however, that the court ever made that determination. Further, if the court found that
some or all of Mr. Heavilin’s felonies were not committed as part of the same act or transaction,
then it was required to sentence him on the specifications linked to those felonies. See R.C.
2929.14(B)(1)(a)(ii). Because we cannot discern from the record whether the court intentionally
chose not to sentence Mr. Heavilin on his outstanding firearm specifications or whether it simply
failed to address them, we have no choice but to dismiss the appeal for lack of a final, appealable
order.
                                                5


       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.




                                                    CARLA MOORE
                                                    FOR THE COURT



HENSAL, P. J.
SCHAFER, J.
CONCUR.


APPEARANCES:

CONRAD G. OLSON, Attorney at Law, for Appellant.

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