[Cite as State v. Holdcroft, 2010-Ohio-4290.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                                CASE NO. 16-10-01

        v.

HENRY ALLEN HOLDCROFT,                                     OPINION

        DEFENDANT-APPELLANT.




                Appeal from Wyandot County Common Pleas Court
                           Trial Court No. 98-CR-0044

                                        Appeal Dismissed

                          Date of Decision: September 13, 2010




APPEARANCES:

        Keith O’Korn for Appellant

        Jonathan K. Miller for Appellee
Case No. 16-10-01


PRESTON, J.

       {¶1} Defendant-appellant,       Henry     Allen     Holdcroft    (hereinafter

“Holdcroft”), appeals the Wyandot County Court of Common Pleas’ judgment of

conviction and sentence. For the reasons stated herein, we dismiss the appeal.

       {¶2} On November 13, 1998, the Wyandot County Grand Jury indicted

Holdcroft on three (3) counts, including: count one (1) of aggravated arson in

violation of R.C. 2909.02(A)(3), a first degree felony; count two (2) of complicity

to commit aggravated arson in violation of R.C. 2923.03(A)(1), a first degree

felony; and count three (3) of arson in violation of R.C. 2909.03(A)(4), a third

degree felony. (Doc. No. 1).

       {¶3} On June 9, 1999, the State filed a motion to dismiss count two of the

indictment on the basis that the charge was an allied offense of similar import to

count one, aggravated arson. (Doc. No. 58). The trial court granted the State’s

motion to dismiss count two on June 25, 1999. (Doc. No. 79).

       {¶4} On July 6-9, 1999, a jury trial was held on the remaining two counts

of the indictment against Holdcroft. (Scheduling Order, Doc. No. 49). The jury

returned guilty verdicts on both counts. (Doc. Nos. 106-107). On July 29, 1999,

the trial court filed a judgment entry of conviction. (Doc. No. 114).

       {¶5} On September 10, 1999, the trial court sentenced Holdcroft to ten

(10) years imprisonment on count one, aggravated arson, and five (5) years



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imprisonment on count three, arson. (Sept. 13, 1999 JE, Doc. No. 116). The trial

court ordered “that the sentence imposed for Count Three shall be served

consecutively to the sentence imposed in Count One.” (Id.).                               Holdcroft was

ordered to make restitution to Kathy Hurst (the victim), or the insurance carrier, in

the sum of $5,775.00, and $400.00 to Eric Goodman. (Id.). The trial court also

notified Holdcroft “that a period of post-release control shall be imposed,” and

that if he violated his post-release control further restrictions upon his liberty could

follow as a consequence. (Id.).                Holdcroft was also taxed with the costs of

prosecution and all other fees permitted under R.C. 2929.18(A)(4). (Id.).

         {¶6} On September 14, 1999, Holdcroft filed a notice of appeal pro se.

(Doc. No. 117). The trial court thereafter appointed appellate counsel, and the

appeal was assigned case no. 16-99-04. (Doc. Nos. 124, 125). The State filed a

notice of cross-appeal on October 13, 1999 related to the trial court’s judgment

entry concerning the admission of other acts evidence under Evid.R. 404(B).1

(Doc. No. 130). On appeal, Holdcroft asserted one assignment of error arguing

that his convictions were against the manifest weight of the evidence. State v.

Holdcroft (Mar. 31, 2000), 3d Dist. No. 16-99-04, at *1. This Court overruled

Holdcroft’s assignment of error, sustained the State’s assignment of error, and

upheld the convictions. Id.


1
 This Court granted the State leave to file this appeal in the interests of justice even though the State
mistakenly filed the appeal with this Court rather than the trial court. (See Oct. 29, 1999 JE, Doc. No. 130).


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      {¶7} While his direct appeal was pending before this Court, Holdcroft

filed a motion for the appointment of counsel in order to pursue post-conviction

relief. (Doc. No. 131). The trial court granted Holdcroft’s motion and appointed

counsel on February 3, 2000. (Doc. No. 132).

      {¶8} On May 5, 2000, Holdcroft, pro se, filed a notice of appeal to the

Ohio Supreme Court from this Court’s March 31, 2000 decision. (Doc. No. 134).

The Ohio Supreme Court, however, declined review. State v. Holdcroft (2000), 89

Ohio St.3d 1464, 732 N.E.2d 997.

      {¶9} On June 9, 2000, Holdcroft, through appointed appellate counsel,

filed a motion for a new trial, along with a motion to withdraw as appellate

counsel. (Doc. Nos. 135-36). The trial court granted the motion to withdraw but

denied the motion for a new trial. (Doc. Nos. 138, 141). On June 26, 2000,

Holdcroft filed a motion for judicial release, which the trial court also denied.

(Doc. Nos. 135, 139).

      {¶10} On July 13, 2006, Holdcroft filed a “motion to vacate or set aside

and modify sentence pursuant to R.C. 2945.25 (A) & Crim.R. 52(B).” (Doc. No.

161). On July 20, 2006, the trial court overruled the motion, finding it was

untimely and lacked substantive merit “as the Defendant was not convicted of

allied offenses of similar import.   There were separate and distinct felonies




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committed by the Defendant, one involving a dwelling and the other involving an

automobile.” (Doc. No. 163).

       {¶11} On August 16, 2006, Holdcroft, pro se, filed a notice of appeal from

the trial court’s denial of his motion. (Doc. No. 165). On appeal, Holdcroft argued

that his sentence was void because he was sentenced on two offenses that were

allied offenses of similar import. This Court overruled Holdcroft’s assignment of

error, finding that his motion was an untimely post-conviction motion, and, under

a plain error analysis, that the offenses were not allied offenses of similar import.

State v. Holdcroft, 3d Dist. No. 16-06-07, 2007-Ohio-586.

       {¶12} On December 11, 2009, the State filed a motion to correct

Holdcroft’s sentence pursuant to R.C. 2929.191. (Doc. No. 186). On December

30, 2009, the State filed a motion for a de novo sentencing hearing to correct

Holdcroft’s sentence pursuant to State v. Singleton, 124 Ohio St.3d 173, 2009-

Ohio-6434, 920 N.E.2d 958. (Doc. No. 195). On January 5, 2010, the trial court

granted the State’s motion for a de novo sentencing hearing. (Doc. No. 198).

       {¶13} On January 26, 2010, the trial court conducted a de novo sentencing

hearing. (Feb. 2, 2010 JE, Doc. No. 205). The trial court sentenced Holdcroft to

ten (10) years on count one and five (5) years on count three. (Id.). The trial court

further ordered that the term of imprisonment imposed on count three be served

consecutively to the term of imprisonment imposed on count one for an aggregate



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term of fifteen (15) years. (Id.). The trial court notified Holdcroft that he would be

subject to five (5) years of mandatory post-release control as to count one and

three (3) years of optional post-release control as to count three after

imprisonment. (Id.); (Jan. 26, 2010 Tr. at 23). The trial court noted that the terms

of post-release control would not be served consecutively to each other. (Feb. 2,

2010 JE, Doc. No. 205); (Jan. 26, 2010 Tr. at 23). The trial court also ordered that

Holdcroft “pay restitution to Kathy Hurst, or the insurance carrier, in the sum of

$5,775.00; and make restitution to Eric Goodman in the amount of $400.00.” (Feb.

2, 2010 JE, Doc. No. 205).

       {¶14} On February 12, 2010, Holdcroft filed a notice of appeal from the

trial court’s judgment entry of sentence, which is the present appeal. (Doc. No.

210). Holdcroft now appeals raising the following nine (9) assignments of error:

                       ASSIGNMENT OF ERROR NO. I

       THE COURT LACKED JURISDICTION TO IMPOSE
       MANDATORY POST-RELEASE CONTROL UPON THE
       APPELLANT.

                       ASSIGNMENT OF ERROR NO. II

       THE CONSECUTIVE, MAXIMUM SENTENCES VIOLATED
       THE 6TH AMENDMENT TO THE U.S. CONSTITUTION, AND
       THE DUE PROCESS CLAUSES CONTAINED IN THE OHIO
       AND U.S. CONSTITUTIONS.




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                    ASSIGNMENT OF ERROR NO. III

      THE MAXIMUM, CONSECUTIVE SENTENCES AND THE
      RESTITUTION ORDER WERE CONTRARY TO LAW AND
      ABUSIVE.

                    ASSIGNMENT OF ERROR NO. IV

      THE TRIAL COURT ERRED IN CONVICTING AND
      SENTENCING THE APPELLANT ON AGGRAVATED
      ARSON AND ARSON COUNTS IN VIOLATION OF THE
      DOUBLE JEOPARDY CLAUSE OF THE 5TH AMENDMENT
      OF THE U.S. CONSTITUTION, ARTICLE 1 SECTION 10 OF
      THE OHIO CONSTITUTION AND OHIO’S MULTIPLE-
      COUNT STATUTE.

                    ASSIGNMENT OF ERROR NO. V

      THE SENTENCE SHOULD BE REVERSED AS IT
      VIOLATES CRIMINAL RULE 32, AND THE 5TH, 6TH AND
      14TH AMENDMENTS TO THE U.S. CONSTITUTION,
      BECAUSE IT WAS IMPOSED OVER TEN YEARS AFTER
      THE GUILTY VERDICT.

                    ASSIGNMENT OF ERROR NO. VI

      THE COURT ERRED WHEN IT FAILED TO CHANGE THE
      VENUE OR GRANT A MISTRIAL DUE TO JURY TAINT
      AND JURY MISCONDUCT THAT VIOLATED THE 6TH AND
      14TH AMENDMENTS TO THE U.S. CONSTITUTION, AND
      ARTICLE 1, SECTIONS 10 AND 16 OF THE OHIO
      CONSTITUTION.

                    ASSIGNMENT OF ERROR NO. VII

      THE COURT ERRED IN ADMITTING OTHER ACTS
      EVIDENCE IN VIOLATION OF EVID.R. 403 AND 404, THUS
      DEPRIVING APPELLANT OF A FAIR TRIAL UNDER THE
      6TH  AND   14TH  AMENDMENTS       TO   THE     U.S.



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       CONSTITUTION, AND ARTICLE 1, SECTIONS 10 AND 16
       OF THE OHIO CONSTITUTION.

                     ASSIGNMENT OF ERROR NO. VIII

       APPELLANT’S CONVICTION WAS NOT SUPPORTED BY
       THE SUFFICIENCY OF THE EVIDENCE IN VIOLATION
       OF THE DUE PROCESS CLAUSE OF THE 14TH
       AMENDMENT TO THE U.S. CONSTITUTION, AND
       ARTICLE 1, SECTIONS 1 & 16 OF THE OHIO
       CONSTITUTION, AND THE CONVICTIONS WERE
       AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

                      ASSIGNMENT OF ERROR NO. IX

       TRIAL    COUNSEL    RENDERED     INEFFECTIVE
       ASSISTANCE OF COUNSEL IN VIOLATION OF THE 6TH
       AMENDMENT TO THE U.S. CONSTITUTION AND
       ARTICLE 1, SECTIONS 10, 16 OF THE OHIO
       CONSTITUTION.

       {¶15} Before this Court may address Holdcroft’s assignments of error, we

must first determine whether jurisdiction exists to hear this appeal.

       {¶16} The Courts of Appeals in Ohio has appellate jurisdiction over “final

appealable orders.” Section 3(B)(2), Article IV of the Ohio Constitution. If an

appealed judgment is not a final order, the Appellate Court has no jurisdiction to

consider it and the appeal must be dismissed. State v. Sandlin, 4th Dist. No.

05CA23, 2006-Ohio-5021, ¶9, citing Davison v. Rini (1996), 115 Ohio App.3d

688, 692, 686 N.E.2d 278; Prod. Credit Assn. v. Hedges (1993), 87 Ohio App.3d

207, 210, 621 N.E.2d 1360; Kouns v. Pemberton (1992), 84 Ohio App.3d 499,

501, 617 N.E.2d 701. Moreover, this Court must raise jurisdictional issues sua


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sponte. Sandlin, 2006-Ohio-5021, at ¶9. See, also, In re Murray (1990), 52 Ohio

St.3d 155, 159-60, 556 N.E.2d 1169, at fn. 2; Whitaker-Merrell Co. v. Geupel

Const. Co. (1972), 29 Ohio St.2d 184, 186, 280 N.E.2d 922.

       {¶17} R.C. 2505.02 defines a final order, in relevant part, as: “[a]n order

that affects a substantial right in an action that in effect determines the action and

prevents a judgment.” R.C. 2505.02(B)(1). Since R.C. 2505.02(B)(1) requires a

final order to “determine[] the action” and “prevent[] a judgment,” “‘[a] judgment

that leaves issues unresolved and contemplates that further action must be taken is

not a final appealable order.’” State ex rel. Keith v. McMonagle, 103 Ohio St.3d

430, 2004-Ohio-5580, 816 N.E.2d 597, ¶4, quoting Bell v. Horton (2001), 142

Ohio App.3d 694, 696, 756 N.E.2d 1241.            Furthermore, “‘[f]or an order to

determine the action and prevent a judgment for the party appealing, it must

dispose of the whole merits of the cause or some separate and distinct branch

thereof and leave nothing for determination of the court.’” State ex rel. Bd. of State

Teachers Retirement Sys. of Ohio v. Davis, 113 Ohio St.3d 410, 2007-Ohio-2205,

865 N.E.2d 1289, ¶45, quoting State ex rel. Downs v. Panioto, 107 Ohio St.3d

347, 2006-Ohio-8, 839 N.E.2d 911, ¶20.

       {¶18} In pertinent part, the trial court ordered that Holdcroft “pay

restitution to Kathy Hurst, or the insurance carrier, in the sum of $5,775.00.” (Feb.

2, 2010 JE, Doc. No. 205) (Emphasis added). In State v. Kuhn, we found that a



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restitution order must set forth “the amount of restitution [or] the method of

payment” in order to be a final appealable order under R.C. 2505.02. 3d Dist. No.

4-05-23, 2006-Ohio-1145, ¶8, citing In re Holmes (1980), 70 Ohio App.2d 75, 77,

434 N.E.2d 747 and In re Zakov (1995), 107 Ohio App.3d 716, 669 N.E.2d 344.

More recently, in State v. Hartley this Court was presented with a judgment entry

that ordered the defendant to pay restitution “to the victims herein in the total

amount of $32,275.57.” 3d Dist. No. 14-09-42, 2010-Ohio-2018, ¶5. This Court

determined that the judgment entry in Hartley was not a final appealable order

under R.C. 2505.02(B)(1), reasoning as follows:

       [T]he November 2009 Judgment Entry did not list any victims,
       did not describe how the restitution would be allocated among the
       victims, and did not incorporate any document providing this
       information. Accordingly, we find that the judgment entry
       appealed from left unresolved issues and contemplated further
       action. As such, the judgment entry was not a final appealable
       order, and this Court is without jurisdiction to determine this
       appeal.

Id. (emphasis added).

       {¶19} Like the judgment entry in Hartley, the judgment entry here fails to

allocate the $5,775.00 in restitution between the victim, Kathy Hurst, and the

insurance company or incorporate any document reflecting the allocation. While

the total amount of restitution ordered by the trial court is equal to the amount of

damage sustained by the Hurst’s vehicle as a direct result of Holdcroft’s criminal

conduct, the record indicates that Hurst’s insurance company compensated her for


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the damages (or paid for the repairs), minus her deductible. (Estimate, State’s Ex.

60); (See, e.g., PSI at 7). Therefore, the judgment entry leaves unresolved the

exact amount owed to Hurst and the insurance company, respectively. As such,

the judgment entry appealed from is not a final appealable order as provided in

R.C. 2505.02(B)(1) over which this Court may exercise jurisdiction. Hartley,

2010-Ohio-2018, at ¶5.

       {¶20} Holdcroft’s appeal is, therefore, dismissed for lack of jurisdiction.

                                                                  Appeal Dismissed

WILLAMOWSKI, P.J. and ROGERS, J., concur.

/jlr




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