[Cite as State v. Dudley, 2014-Ohio-430.]


                                        COURT OF APPEALS
                                     ASHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                  :   JUDGES:
                                               :
                                               :   Hon. William B. Hoffman, P.J.
       Plaintiff-Appellee                      :   Hon. Patricia A. Delaney, J.
                                               :   Hon. Craig R. Baldwin, J.
-vs-                                           :
                                               :   Case No. 13-COA-016
                                               :
LARRY W. DUDLEY, JR.                           :
                                               :
                                               :
       Defendant-Appellant                     :   OPINION


CHARACTER OF PROCEEDING:                           Appeal from the Ashland County Court
                                                   of Common Pleas, Case No. 13-CRI-
                                                   024



JUDGMENT:                                          APPEAL DISMISSED




DATE OF JUDGMENT ENTRY:                            January 15, 2014




APPEARANCES:

For Plaintiff-Appellee:                            For Defendant-Appellant:

RAMONA J. ROGERS                                   ERIN N. POPLAR
ASHLAND CO. PROSECUTOR                             103 Milan Ave., Suite 6
PAUL T. LANGE                                      Amherst, OH 44001
110 Cottage Street, Third Floor
Ashland, OH 44805
Ashland County, Case No.13-COA-016                                                       2

Delaney, J.

       {¶1} Appellant Larry W. Dudley, Jr. appeals from the May 16, 2013 Judgment

Entry – Sentencing of the Ashland County Court of Common Pleas. Appellee is the

state of Ohio. This case is related to but not consolidated with State v. Dudley, 5th Dist.

Ashland No. 13-COA-017.

                        FACTS AND PROCEDURAL HISTORY

       {¶2} A statement of the facts underlying appellant's original conviction is

unnecessary to our disposition of this appeal.

       {¶3} Appellant was charged and ultimately entered pleas of no contest to the

following charges in two separate criminal cases:

 Case No.      Count     Offense     Revised Code       Degree        Sentence
                No.                    Section
12-CRI-          I      Burglary    2911.12(A)(3)         F3      30 months
1311
12-CRI-          III    Burglary    2911.12(A)(3)         F3      30 months
1311
12-CRI-          IV     Burglary    2911.12(A)(3)         F3      30 months
1311
13-CRI-024        I     B&E         2911.13(A)            F5      12 months
13-CRI-024        II    Theft       2913.02(A)(1)         M1      90 days
13-CRI-024       III    Theft       2913.02(A)(1)         M1      90 days
13-CRI-024       IV     B&E         2911.13(A)            F5      12 months
13-CRI-024        V     Theft       2913.02(A)(1)         M1      90 days
13-CRI-024       VI     B&E         2911.13(A)            F5      12 months
13-CRI-024       VII    Theft       2913.02(A)(1)         M1      90 days
13-CRI-024       VIII   Theft       2913.02(A)(1)         F5      12 months
                        from
                        elderly
                        person


       {¶4} After appellant changed his pleas and prior to entering sentences, the trial

court ordered a presentence investigation (P.S.I.) which has been made part of the

record on appeal. The lengthy P.S.I. indicates appellant engaged in a series of thefts
Ashland County, Case No.13-COA-016                                                    3


and burglaries with a cohort to support a serious drug habit. Appellant has an extensive

criminal history of similar offenses.

       {¶5} In this case, the trial court found consecutive sentences are necessary to

protect the public from future crimes and to punish the offender and are not

disproportionate to the seriousness of appellant’s conduct. The felony sentences were

therefore ordered to be served consecutively for an aggregate prison term of eleven and

a half years. (The misdemeanor sentences were ordered to be served concurrently.)

       {¶6} As the trial court sentenced appellant to prison, appellant cursed and

threatened the trial judge. Appellant was therefore removed from the courtroom and

sentencing continued.

       {¶7} Restitution was a significant issue at sentencing.          Items stolen by

appellant included copper pipe from a house, the removal of which caused flooding and

significant damage. Appellee reported a restitution amount of $89,000 for that victim,

although the victim had not yet presented any documentation. At sentencing, after

appellant’s removal from the courtroom, the trial court stated the following regarding

restitution:

               * * *.

               I am assessing the Court costs in this matter including the $30 fee

               required pursuant to Section 2949.041 and the $30 fee required

               pursuant to Section 2743.70, and the $25 fee required to Section

               120.36.   I am further Ordering that [appellant] pay restitution to

               Heather Harrison in the amount of $2,578, that he pay restitution to

               Phillip Lininger in the amount of $500, that he pay restitution to
Ashland County, Case No.13-COA-016                                                  4


              Jerry Smith in the amount of $900, and that he pay restitution to

              Teresa Stackhouse in the amount of $87,500, although I do

              want to make that Order subject to some documentation either

              in the form of a settlement or what have you, that provides the

              Court with a little more verification that in fact was the amount,

              the $89,000 was the amount of the insurance claim. (Emphasis

              added.)

              * * *.

       {¶8} The resulting Judgment Entry – Sentencing of the trial court filed May 16,

2013 states the following regarding restitution:

              The Defendant is ORDERED to make restitution in the amount of

              Five Hundred Dollars ($500.00) to Phillip Leininger; Nine Hundred

              Dollars ($900.00) to Jerry Smith; Eighty-Seven Thousand Five

              Hundred Dollars ($87,500.00) to Theresa Stackhouse, the victims

              in this case.   In regards to the restitution order for Theresa

              Stackhouse, the Court’s restitution order is being issued

              subject to the Court receiving written documentation in

              support of the amount of restitution ordered. If the Court does

              not receive written documentation from Ms. Stackhouse, the

              Court may set aside the restitution order for her. (Emphasis

              added.)

       {¶9} Appellant now appeals from the judgment entry of conviction and

sentence entered by the trial court on May 16, 2013.
Ashland County, Case No.13-COA-016                                                   5


      {¶10} Appellant raises five assignments of error:

                              ASSIGNMENTS OF ERROR

      {¶11} “I.     THE TRIAL COURT ERRED WHEN IT IMPOSED PRISON

SENTENCES FOR FOUR FIFTH DEGREE FELONIES WITHOUT MAKING A

SPECIFIC FINDING THAT ANY FACTOR CONTAINED IN OHIO REVISED CODE

2929.13(B)(1)(b) APPLY (sic) RELATIVE TO APPELLANT.”

      {¶12} “II. THE TRIAL COURT ERRED WHEN IT IMPOSED CONSECUTIVE

12-MONTH SENTENCES FOR FOUR FIFTH DEGREE FELONY CONVICTIONS

SUCH THAT THE AGGREGATE SENTENCE EXCEEDED THE MAXIMUM PRISON

TERM ALLOWED BY OHIO REVISED CODE 2929.14(A) FOR THE MOST SERIOUS

OFFENSE OF WHICH THE APPELLANT WAS CONVICTED, 12 MONTHS.”

      {¶13} “III. THE TRIAL COURT ERRED TO (sic) ORDERING APPELLANT TO

PAY   MORE        THAN    $90,000.00   IN    RESTITUTION       WITHOUT   SUPPORTING

DOCUMENTATION,           OUTSIDE   OF       APPELLANT’S    PRESENCE      AND   IN   AN

UNDETERMINED AMOUNT.”

      {¶14} “IV. IN THE ALTERNATIVE, APPELLANT WAS DENIED EFFECTIVE

ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AND FOURTEENTH

AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I,

SECTION 10 OF THE OHIO CONSTITUTION BECAUSE HIS COUNSEL DID NOT

DISPUTES (sic) RESTITUTION AMOUNTS OR REQUEST A HEARING ON

RESTITUTION.”

      {¶15} “V.     THE    TRIAL   COURT        ERRED     IN    ORDERING   MAXIMUM

CONSECUTIVE PRISON SENTENCES FOR FIFTH DEGREE FELONIES AS THE
Ashland County, Case No.13-COA-016                                                       6


IMPOSITION OF SUCH SENTENCES PLACES AN UNNECESSARY BURDEN ON

STATE RESOURCES.”

                                        ANALYSIS

                                     I., II., III., IV., V.

        {¶16} As an initial matter, we must address whether the judgment entry of May

16, 2013 constitutes a final appealable order in light of the indefinite restitution order

For the following reasons, we find it does not, and therefore we dismiss the within

appeal for lack of a final appealable order.

        {¶17} The Ohio Supreme Court has recognized “the determination of restitution

entails a substantive legal decision or judgment and is not merely a mechanical part of a

judgment.” State v. Miller, 127 Ohio St.3d 407, 2010–Ohio–5705, 940 N.E.2d 924, ¶ 16.

Generally, as the Court held at the syllabus in State v. Danison, 105 Ohio St.3d 127,

2005–Ohio–781, 823 N.E .2d 444, “[a]n order of restitution imposed by the sentencing

court on an offender for a felony is part of the sentence and, as such, is a final and

appealable order.”

        {¶18} Where a judgment entry does not settle either the amount of restitution or

the method of payment, however, it is not a final appealable order. State v. Kuhn, 3rd

Dist. Defiance No. 4–05–23, 2006–Ohio–1145, ¶ 8; In re Zakov, 107 Ohio App.3d 716,

718, 669 N.E.2d 344 (11th Dist.1995); In re Holmes, 70 Ohio App.2d 75, 77, 434 N.E.2d

747 (1st Dist.1980). In this case, a significant order of restitution is dependent upon one

victim submitting proof of her insurance claim or other documentation satisfactory to the

trial court.
Ashland County, Case No.13-COA-016                                                  7


       {¶19} We note the record is silent as to whether any party has requested a

hearing to finalize this restitution amount.

       {¶20} The May 16, 2013 entry thus lacks a complete sentence and is merely

interlocutory. State v. Riggs, 5th Dist. Licking No. 2009 CA 00041, 2009-Ohio-6821, fn

2. Accordingly, we find there is no final appealable order in this case.

       {¶21} Appellant’s appeal is therefore dismissed.

                                       CONCLUSION

       {¶22} For the foregoing reasons, this appeal is dismissed for lack of a final

appealable order.

By: Delaney, J. and

Hoffman, P.J.

Baldwin, J., concur.
