[Cite as State v. Johnson, 2015-Ohio-3370.]


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

STATE OF OHIO,                                   :     Case No. 14CA3660

        Plaintiff-Appellee,                      :

v.                                               :     DECISION AND
                                                       JUDGMENT ENTRY
TRACY L. JOHNSON,                                :

        Defendant-Appellant.                     :     RELEASED 08/19/2015

                                              APPEARANCES:

W. Jeffrey Moore, Columbus, Ohio, for appellant.

Mark E. Kuhn, Scioto County Prosecuting Attorney, and Julie Cooke Hutchinson, Scioto County
Assistant Prosecuting Attorney, Portsmouth, Ohio, for appellee.

Hoover, P.J.
        {¶1}     Appellant Tracy Johnson was indicted by the Scioto County Grand Jury with

trafficking in marijuana, possession of marijuana, conspiracy to trafficking in marijuana, and

tampering with evidence. At the arraignment, Johnson entered a plea of not guilty to the charges.

Johnson subsequently changed his plea to no contest to the charges of trafficking in drugs and

tampering with evidence. The trial court found Johnson guilty of the two charges and convicted

him. The trial court sentenced Johnson to prison terms of two years on each count to run

concurrent to one another. The record contains no disposition of the remaining charges.

        {¶2}     On appeal, Johnson raises three assignments of error challenging the trial court’s

denial of his motion to dismiss the criminal charges based on the state’s failure to comply with

the Interstate Agreement on Detainers, which is codified in Ohio in R.C. 2963.30. However,

because the trial court failed to dispose of the possession of marijuana and conspiracy to

trafficking in marijuana charges and because no journal entry appears in the record resolving all
Scioto App. No. 14CA3660                                                                            2


of the charges against Johnson, no final appealable order exists. Consequently, we lack

jurisdiction to address the merits of his appeal; and we must dismiss it.

                                             I. FACTS

       {¶3}    In June 2008, the Scioto County Grand Jury returned an indictment charging

Johnson with four counts: (1) trafficking in marijuana, a felony of the third degree; (2)

possession of marijuana, a felony of the third degree; (3) conspiracy to trafficking in marijuana, a

felony of the fourth degree; and (4) tampering with evidence, a felony of the third degree.

Johnson retained counsel and entered a plea of not guilty to the charges. In November 2008,

Johnson filed three motions to suppress certain evidence. The trial court scheduled hearings on

the motions for January 2009. When Johnson failed to appear, the trial court issued a bench

warrant for Johnson’s arrest.

       {¶4}    In February 2011, Scioto County authorities were informed that Johnson was

incarcerated in Pennsylvania; and the state proceeded to request temporary custody of Johnson

under Article IV(A) of the Interstate Agreement on Detainers. (“IAD”) The state ultimately

decided, however, to wait until Johnson was released on parole from the Pennsylvania prison in

which he was confined to proceed on the bench warrant and seek his extradition. On either April

15 or 25, 2011, Johnson was released on parole from the Pennsylvania prison and was arrested

pursuant to the bench warrant issued by the trial court in 2009. On April 29, 2011, Johnson

waived extradition to Ohio to answer the pending charges; and a Pennsylvania court ordered the

extradition. Earlier that month, Johnson’s counsel refiled his three motions to suppress. Johnson

was returned to Ohio around May 10, 2011; and he was released on bond on June 3, 2011. At

that time, Johnson returned to Pennsylvania to serve a portion of his parole in a community

education center providing reentry services to parolees.
Scioto App. No. 14CA3660                                                                              3


       {¶5}    In September 2011, Johnson withdrew his motions to suppress. Two months later,

Johnson filed a motion to dismiss based on the claim that the state had violated various

provisions of the IAD. The state filed a response; and Johnson filed a reply. The parties attached

exhibits to their filings regarding the motion to dismiss. After the trial court denied the motion,

Johnson entered a plea of no contest to the charges of trafficking in drugs and tampering with

evidence. Johnson appealed the trial court’s denial of the motion to dismiss; however, this Court

dismissed Johnson’s appeal because the trial court’s entry denying his motion to dismiss was not

a final, appealable order. See State v. Johnson, 4th Dist. Scioto No. 12CA3478.

       {¶6}    In September 2014, the trial court convicted Johnson of trafficking in drugs and

tampering with evidence and sentenced him to an aggregate two-year prison term. The trial

court’s judgment entry contained no disposition of Johnson’s other charges—possession of

marijuana and conspiracy to trafficking in marijuana—and no other journal entry in the record

indicates any resolution of these charges. This appeal followed.

                                 II. ASSIGNMENTS OF ERROR

       {¶7}    Johnson assigns the following errors for our review:

       1. The trial court erred in failing to find the State of Ohio violated Article III
          section (C) of the Interstate Agreement on Detainers.

       2. The trial court erred in failing to find the State of Ohio violated Article IV
          section (E) of the Interstate Agreement on Detainers when it allowed the
          Appellant to return to the sending state before trial was held in Ohio.

       3. The trial court erred by failing to bring Mr. Johnson to trial within 120 days of
          his presence in Ohio in violation of Article IV of the Interstate Agreement on
          Detainers.

                                   III. LAW AND ANALYSIS

       {¶8}    “The Ohio Constitution grants courts of appeals jurisdiction ‘to review and affirm,

modify, or reverse judgments or final orders.’ ” Smith v. Chen, 142 Ohio St.3d 411, 2015-Ohio-
Scioto App. No. 14CA3660                                                                               4


1480, 31 N.E.3d 633, ¶ 8, quoting Ohio Constitution, Article IV, Section 3(B)(2). The General

Assembly has enacted R.C. 2505.02 to specify which orders are final. Id.

       {¶9}    To constitute a final, appealable order under R.C. 2505.02, a judgment of

conviction and sentence must satisfy the substantive provisions of Crim.R. 32(C) and include:

(1) the fact of 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, 958 N.E.2d 142, paragraph one of the syllabus. The Supreme Court of Ohio has also

held that a final, appealable order in a criminal case involving a defendant initially charged with

several counts does not require a reiteration of those counts and specifications for which there

were no convictions, but were resolved in other ways, such as dismissal, nolled counts, or not

guilty findings. See State ex rel. Rose v. McGinty, 128 Ohio St.3d 371, 2011-Ohio-761, 944

N.E.2d 672, ¶ 3, and cases cited therein.

       {¶10} Nevertheless, “ ‘unless the charges that are not the basis of the conviction have

been properly terminated by a journal entry, they remain technically unresolved. This “hanging

charge” prevents the conviction from being a final order under R.C. 2505.02(B) because it does

not determine the action, i.e., resolve the case.’ ” State v. Brewer, 4th Dist. Meigs No. 12CA9,

2013-Ohio-5118, ¶ 6, quoting State v. Marcum, 4th Dist. Hocking Nos. 11CA8 and 11CA10,

2012-Ohio-572, ¶ 6; State v. Pruitt, 8th Dist. Cuyahoga No. 96852, 2012-Ohio-1535, ¶ 5,

quoting State v. Goodwin, 9th Dist. Summit No. 23337, 2007-Ohio-2343, ¶ 7 (“ ‘a trial court’s

failure to dispose of any of the charges against a defendant in a single case renders the trial

court’s journal entry non-final in regard to all of the charges against him’ ”); State v. Allman, 2d

Dist. Montgomery No. 24693, 2012-Ohio-413, ¶ 6 (“when the trial court fails to dispose of each

charge in the defendant’s case, the trial court’s sentencing entry as to some charges is merely
Scioto App. No. 14CA3660                                                                             5


interlocutory”); see generally Painter and Pollis, Ohio Appellate Practice, Section 2:10 (2014)

(“where a defendant is convicted on more than one charge, there is no final order until the trial

court enters judgment (including sentence) on each and every offense for which there is a

conviction and a journal entry memorializing the disposition of charges resolved through

dismissal or acquittal”).

       {¶11} The entry appealed from by Johnson did not include a disposition of the second

and third counts of his indictment, which charged him with possession of marijuana and

conspiracy to trafficking in marijuana. The record does not include any separate journal entry

disposing of these charges. Therefore, the entry does not constitute a final, appealable order. We

lack jurisdiction to address the merits of Johnson’s appeal and must dismiss it.

                                       IV. CONCLUSION

       {¶12}     Because we lack jurisdiction to address the merits of this appeal, we dismiss it.

                                                                           APPEAL DISMISSED.
Scioto App. No. 14CA3660                                                                                6


                                       JUDGMENT ENTRY

        It is ordered that the APPEAL IS DISMISSED and that Appellant shall pay the costs.

        The Court finds that reasonable grounds exist for this appeal.

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

        IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously posted. The
purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an
application for a stay during the pendency of proceedings in that court. If a stay is continued by
this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of
the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day
appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio.
Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days,
the stay will terminate as of the date of such dismissal.

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

Harsha, J., and McFarland, A.J.: Concur in Judgment and Opinion.

                                                For the Court


                                                By: ________________________
                                                     Marie Hoover
                                                     Presiding 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.
