[Cite as State v. Mahmood, 2019-Ohio-5041.]




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




STATE OF OHIO,
                                                       CASE NO. 16-19-02
       PLAINTIFF-APPELLEE,

       v.

SAJJAD S. MAHMOOD,                                     OPINION

       DEFENDANT-APPELLANT.



                   Appeal from Upper Sandusky Municipal Court
                           Trial Court No. TRD-18-6348

                         Appeal Dismissed, Cause Remanded.

                          Date of Decision: December 9, 2019



APPEARANCES:

        April F. Campbell for Appellant

        Kathryn M. Collins for Appellee
Case No. 6-19-02


WILLAMOWSKI, J.

           {¶1} Defendant-appellant Sajjad Mahmood (“Mahmood”) brings this appeal

from the judgment of the Upper Sandusky Municipal Court finding him guilty of

speeding in violation of R.C. 4511.21(D)(3) and imposing sentence. On appeal,

Mahmood argues that the trial court improperly enhanced the offense to a fourth-

degree misdemeanor although the ticket only charged him with a minor

misdemeanor. For the reasons set forth below, the appeal is dismissed for lack of a

final, appealable order.

           {¶2} On December 2, 2018, Trooper McLaughlin stopped Mahmood and

issued a citation for excessive speed in violation of R.C. 4511.21(D)(3). Doc. 1.

The citation indicated that Mahmood was traveling at a speed of 80 mph in a 65

mph speed zone. Id. The citation also indicated in the remarks box that it was

Mahmood’s “5th speeding citation in 12 months”.1 Id. In addition to the ticket, the

record includes a printout showing the following convictions for speed violations

within the twelve months prior to this citation:

           3/1/18            Conviction in Franklin County Municipal Court for
                             traveling 84 mph in a 55 mph zone from October 18,
                             2017.

           3/1/18            Conviction in Franklin County Municipal Court for
                             traveling 29 mph in a 25 mph zone from November 11,
                             2017.




1
    The language on the citation was amended to say 4th offense rather than the 5th on December 3, 2018.

                                                      -2-
Case No. 6-19-02


        4/16/18           Conviction in Franklin County Municipal Court for
                          traveling 44 mph in a 40 mph zone from February 9,
                          2018.

Doc. 3-4. On April 29, 2019, a change of plea hearing was held where Mahmood

agreed to enter a plea of no contest to the citation. Doc. 16. The trial court found

Mahmood guilty and sentenced him. Id. Mahmood filed a timely notice of appeal

and on appeal raises one assignment of error.

        Mahmood’s conviction and sentence should be reversed: The
        trial court improperly enhanced Mahmood’s offense to a fourth-
        degree misdemeanor when his ticket only charged him with a
        minor misdemeanor speed.2

        {¶3} The sole assignment of error is that the trial court erred by “enhancing”

the conviction from a minor misdemeanor to one of a higher degree. Mahmood was

convicted of a violation of R.C. 4511.21(D)(3), which states in pertinent part as

follows.

        No person shall operate a motor vehicle, trackless trolley, or
        streetcar upon a street or highway as follows:

        ***

         (3) At a speed exceeding sixty-five miles per hour upon an
        expressway as provided in division (B)(13) or upon a freeway as
        provided in division (B)(16) of this section, except upon a freeway
        as provided in division (B)(14) of this section;




2
 This court notes that the notice of appeal states that Mahmood was convicted of a third degree misdemeanor
and the appeal states that he was convicted of a fourth degree misdemeanor. A review of the change of plea
hearing and the judgment entry does not indicate what the degree of the offense was for which Mahmood
was convicted.

                                                   -3-
Case No. 6-19-02


R.C. 4511.21(D)(3). A violation of this provision is a minor misdemeanor, unless

division (P)(1)(b) or (c) applies. R.C. 4511.21(P)(1)(a).

       (b) If, within one year of the offense, the offender previously has
       been convicted of or pleaded guilty to two violations of any
       provision of this section or of any provision of a municipal
       ordinance that is substantially similar to any provision of this
       section, a misdemeanor of the fourth degree;

       (c) If, within one year of the offense, the offender previously has
       been convicted of or pleaded guilty to three or more violations of
       any provision of this section or of any provision of a municipal
       ordinance that is substantially similar to any provision of this
       section, a misdemeanor of the third degree.

R.C. 4511.21(P)(1)(b-c).

       {¶4} Regardless of the degree to which Mahmood could have been

convicted, this court cannot reach this question because there is no final appealable

judgment to review.      “An appellate court may consider jurisdictional issues

involving final, appealable orders sua sponte.” State v. Rexrode, 2017-Ohio-8837,

¶ 8, 100 N.E.3d 1089 (10th Dist.). “[A] judgment of conviction is a final order

subject to appeal under R.C. 2505.02 when it sets forth (1) the fact of the 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,

¶ 14, 958 N.E.2d 142 modifying State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-

3330, 893 N.E.2d 163.

       {¶5} A review of the record in this case indicates that there was no clear

indication as to the degree of the offense for which Mahmood was charged. The

                                          -4-
Case No. 6-19-02


amended citation indicated that this was Mahmood’s fourth citation within one year.

The statute requires convictions. At the change of plea hearing, the trial court did

not address the degree of the offense or the prior convictions in any manner.3 The

trial court merely stated that he was making a finding of guilty, not what the degree

of the offense was. Tr. 13. When asked whether the State cared to be heard with

regard to the facts, the State responded “No, Your Honor.” Tr. 6. The trial court

did not make any findings regarding any prior convictions. The only discussion

occurred when the counsel for Mahmood stated that Mahmood’s “record stinks.”

Tr. 7. Although the trial court indicated that it had looked at Mahmood’s record, he

does not address whether any of the convictions were in the year prior to the offense

charged.4 Tr. 10. A review of the transcript shows that the trial court did not state

the statutory section or even the name of the offense before accepting the no contest

plea and finding him guilty. During the hearing, the following dialogue occurred

regarding the finding of guilt and the offense.

         The Court: All right. All right. Then based upon the plea of no
         contest, as well as the officer’s statement and statements made in
         court, I will make a finding of guilty.

         Mr. Grafmiller, does the State care to be heard with regards to
         penalty?

         Mr. Grafmiller: No, sir, Your Honor.
3
  The word misdemeanor only appears in the transcript one time and that was during a statement by
Mahmood’s counsel indicating that Mahmood had been convicted of a fourth degree misdemeanor in another
case after he was charged in this case, but before he was convicted.
4
  The trial court refers to Mahmood’s record in which he was driving 114 miles an hour, however, that speed
was not listed in any of the violations put on the record and had no relation to the three convictions within
the 12 months preceding the current offense.

                                                    -5-
Case No. 6-19-02



       ***

       The Court: Based upon your plea of no contest and the officer’s
       statement, as I said, I’ll make a finding of guilty.

Tr. 7, 13.

       {¶6} The judgment entry is silent as to the degree of the offense. The entry

merely states that Mahmood was found guilty of speed in violation of R.C.

4511.21(D)(3). Doc. 16. The section of the statute which determines the degree of

the offense is 4511.21(P). This section was not referenced. The entry also failed to

state that there were any prior convictions within one year of the current offense

which would allow the sentence to be enhanced. This Court notes that the criminal

appeal docketing statement indicated that Mahmood was convicted of a third degree

misdemeanor. Doc. 17. However on appeal, Mahmood’s assignment of error and

argument indicates that he was convicted of a fourth degree misdemeanor.

Appellant’s Brief. The State’s brief does not indicate the level of misdemeanor for

which Mahmood was convicted, but also does not contradict the claim that it was a

fourth degree misdemeanor. Appellee’s Brief. This Court has no way of knowing

by reviewing the judgment entry, or even the change of plea hearing, to what level

of offense Appellant was entering his plea of no contest. This Court also has no

way of knowing what the degree of offense was for which Appellant was convicted

as the record does not indicate this fact. As a result, the judgment is not a final,

appealable order because it does not fully set forth for what Appellant was convicted

                                         -6-
Case No. 6-19-02


as required by Criminal Rule 32(C). The fact that the State may have had enough

evidence in the record to support a conviction greater than a minor misdemeanor is

not sufficient to resolve this issue. See State v. Carthon, 197 Ohio App.3d 677,

2012-Ohio-196, ¶ 10, 968 N.E.2d 576.

       {¶7} Since there is no final, appealable order and this court lacks jurisdiction

to entertain the appeal, the appeal is dismissed.



                                                                   Appeal Dismissed
                                                                   Cause Remanded

ZIMMERMAN, P.J. and PRESTON, J., concur.

/hls




                                         -7-
