[Cite as State v. Carver, 2012-Ohio-3479.]


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

STATE OF OHIO,                 :
                               :
     Plaintiff-Appellee,       : Case No. 10CA3377
                               :
     vs.                       : Released: July 24, 2012
                               :
DAVID L. CARVER,               : DECISION AND JUDGMENT
                               : ENTRY
    Defendant-Appellant.       :
_____________________________________________________________
                         APPEARANCES:

George L. Davis, IV, George L. Davis, III Co., L.L.C., Portsmouth, Ohio,
for Appellant.

Mark E. Kuhn, Scioto County Prosecuting Attorney, and Pat Apel, Scioto
County Assistant Prosecuting Attorney, Portsmouth, Ohio, for Appellee.
_____________________________________________________________

McFarland, J.:

        {¶1} This is an appeal from a Scioto County Common Pleas Court

judgment of conviction and sentence. Appellant, David L. Carver, plead

guilty to: 1) an amended charge of voluntary manslaughter in violation of

R.C. 2903.03; 2) having a weapon under disability in violation of R.C.

2923.13(A)(2); and 3) tampering with evidence in violation of R.C.

2921.12(A), in addition to firearm and repeat violent offender specifications.

On appeal, Appellant contends that the trial court abused its discretion in

imposing sentence. However, in light of our initial determination that the
Scioto App. No. 10CA3377                                                          2


trial court’s judgment entry does not constitute a final, appealable order, we

dismiss the appeal for lack of jurisdiction.

                                         FACTS

      {¶2} In the early evening of July 22, 2009, Crystal Bennett was shot

in the Scioto Trail area of Portsmouth. When police first arrived at the

scene, Appellant reported that he and the victim (his girlfriend) were victims

of a robbery gone awry. Appellant, however, changed his account of the

events several times that evening and, eventually, admitted that he held the

gun when it fired. Bennett later died.

      {¶3} The Scioto County Grand Jury returned an indictment that

charged Appellant with two counts of murder, possession of a weapon while

under disability and tampering with evidence, along with firearm and repeat

violent offender specifications. Appellant initially pled not guilty, but later

agreed to plead guilty to an amended count of voluntary manslaughter as

well as the non-homicide counts.

      {¶4} At the May 19, 2010, hearing, the trial court endeavored to

determine if Appellant was familiar with his rights and if his plea was

knowing and voluntary. The court accepted Appellant’s plea, found him

guilty of the three charges and sentenced him to serve ten years

imprisonment for voluntary manslaughter, four years for having a weapon
Scioto App. No. 10CA3377                                                        3


under disability, four years for tampering with evidence, three years on the

firearm specification and nine years on the repeat violent offender

specification with the sentences to be served consecutively for an aggregate

total of thirty years in prison. Appellant now appeals, assigning the

following error for our review.

                           ASSIGNMENT OF ERROR

“I.   THE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING
      SENTENCE.”

                             LEGAL ANALYSIS

      {¶5} In his sole assignment of error, Appellant contends that the trial

court abused its discretion in imposing sentence. However, before we reach

Appellant’s assignment of error, we must first address a threshold

jurisdictional issue. Ohio appellate courts have appellate jurisdiction over

“final orders.” Section 3(B)(2), Article IV of the Ohio Constitution. If a

judgment is not a final order, an appellate court has no jurisdiction to

consider it and the appeal must be dismissed. Davison v. Rini, 115 Ohio

App.3d 688, 692, 686 N.E.2d 278 (4th Dist. 1996); Prod. Credit Assn. v.

Hedges, 87 Ohio App.3d 207, 210, 621 N.E.2d 1360, FN.2 (4th Dist. 1993);

Kouns v. Pemberton, 84 Ohio App.3d 499, 501, 617 N.E.2d 701 (4th Dist.

1992). Furthermore, even if the parties do not raise jurisdictional issues on

appeal, an appellate court is required to raise them sua sponte. See In re
Scioto App. No. 10CA3377                                                          4


Murray, 52 Ohio St.3d 155, 159-160, 556 N.E.2d 1169, FN.2 (1990);

Whitaker-Merrell v. Geupel Co., 29 Ohio St.2d 184, 186, 280 N.E.2d 922

(1972).

      {¶6} In the case sub judice, the jurisdictional issue is that one count of

the indictment appears to remain pending. The trial court’s June 8, 2010,

entry reveals that count two was amended to charge voluntary manslaughter.

Appellant pled guilty to that count, as well as counts three and four, but we

find no formal disposition of count one. When an indictment counts remains

unresolved and is pending, there is no final order. In re B.J.G., 4th Dist. No.

10CA894, 2010-Ohio-5195, ¶ 7. Because our review of the record indicates

that the first count of the indictment charging murder remains unresolved

and is still pending, there is no final order and we must, therefore, dismiss

the appeal for lack of jurisdiction.

      {¶7} In reaching this decision, we are mindful of the minority’s

approach, and we understand that approach, based upon concerns of judicial

economy. However, we believe that the minority approach ignores a

fundamental principle of the allied offenses of similar import statute.

Particularly, “[t]he General Assembly has made clear that it is the State that

chooses which of the allied offenses to pursue at sentencing, and it may

choose any of the allied offenses.” State v. Whitfield, 124 Ohio St.3d 319,
Scioto App. No. 10CA3377                                                         5


2010-Ohio-2, 922 N.E.2d 182, ¶ 20. Here, because the murder count is

unresolved and still pending, Appellant could still be convicted of murder.

And if Appellant were to be convicted of murder, the State could still choose

to pursue sentencing for the murder conviction instead of the voluntary

manslaughter conviction. As the State chooses which allied offense to

pursue, the voluntary manslaughter conviction cannot render the pending

murder count moot. As such, we find that the trial court’s judgment entry is

not final and appealable.

      {¶8} Accordingly, the appeal is dismissed.

                                                     APPEAL DISMISSED.

Abele, P.J., Dissenting:

      {¶9} I respectfully dissent. Although I concede the fact that count one

of the indictment appears to remain pending and raises a jurisdictional

question, in the case before us I do not believe that we have been deprived of

jurisdiction and that we may, in fact, address the merits of the appeal.

      {¶10} In the case sub judice, the jurisdictional issue is that one count

of the indictment appears to remain pending. The trial court's June 8, 2010

entry reveals that count two was amended to charge voluntary manslaughter.

Appellant pled guilty to that count, as well as counts three and four, but I

find no formal disposition of count one. When an indictment count remains
Scioto App. No. 10CA3377                                                         6


unresolved and is pending, there is no final order. In re B.J.G., Adams App.

No. 10CA894, 2010-Ohio-5195, at ¶7; State v. Wyant, Scioto App. No.

08CA3264, 2009-Ohio-5200, at ¶10; State v. Rothe, Fairfield App. No.

2008CA44, 2009-Ohio-1852, at ¶10; State v. Goodwin, Summit App. No.

23337, 2007-Ohio-2343, at ¶13. Ordinarily, the fact that a count has not

been resolved would require the dismissal of the appeal. However, when a

trial court’s judgment renders moot any claims that have not been formally

resolved, Ohio law recognizes the existence of a final, appealable order,

notwithstanding the fact that, technically, a claim remains pending. See

General Acc. Ins. v. Ins. Co. of N. Am. (1989), 44 Ohio St.3d 17, 21, 540

N.E.2d 266; Wise v. Gursky (1981), 66 Ohio St.2d 241, 421 N.E.2d 150, at

the syllabus. Admittedly, I have located only one Ohio criminal case that

has applied this principle. See e.g. State v. Singleton (Nov. 4, 1985),

Cuyahoga App. No. 49965. Nevertheless, I believe it is appropriate to apply

that principle here.

      {¶11} In the case sub judice, counts one and two of the indictment

both charged appellant with the murder of Crystal Bennett, albeit under

different theories. R.C. 2941.25(A) states “[w]here the same conduct by [a]

defendant can be construed to constitute two or more allied offenses of

similar import, the indictment . . . may contain counts for all such offenses,
Scioto App. No. 10CA3377                                                          7


but the defendant may be convicted of only one.” Here, only one murder

occurred in this case. Appellant may have been charged under two different

counts of the indictment, but he could be convicted for only one. Thus, a

conviction on the amended count of voluntary manslaughter (count two)

renders moot the charge brought against him in count one. Consequently,

because appellant cannot be convicted twice for the same homicide, his

guilty plea on the amended second count of the indictment rendered moot

the murder charge under count one. Although count one arguably remains

pending, I would nevertheless conclude that a final appealable order exists

and proceed to address the merits of appellant's assignment of error.

      {¶12} I recognize that the majority opinion, citing State v. Whitfield,

124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, attaches great

significance to the proposition that the State should be afforded the

opportunity to choose which of the allied offenses to pursue at sentencing,

and that it may choose any of the allied offenses. While I certainly agree

with this general proposition, I do not believe that it is applicable in the case

at bar. Here, the convictions resulted from a plea agreement, with the full

cooperation and participation of the State. Thus, I believe it is apparent that

the State has already had the opportunity to choose and that it opted to

pursue a voluntary manslaughter conviction.
Scioto App. No. 10CA3377                                                        8


                           JUDGMENT ENTRY

      It is ordered that the APPEAL BE DISMISSED and that the Appellee
recover of Appellant costs herein taxed.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing
the Scioto County Common Pleas Court 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.
Exceptions.
Kline, J.: Concurs in Judgment in Opinion.
Abele, P.J.: Dissents with Opinion.

                           For the Court,

                           BY: _________________________
                               Matthew W. McFarland, 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.
