[Cite as State v. Anderson, 2013-Ohio-339.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                     GEAUGA COUNTY, OHIO


STATE OF OHIO,                                  :         MEMORANDUM OPINION

                 Plaintiff-Appellee,            :
                                                          CASE NO. 2012-G-3108
        - vs -                                  :

RICARDO ANDERSON,                               :

                 Defendant-Appellant.           :


Criminal Appeal from the Geauga County Court of Common Pleas, Case No.
12C000076.

Judgment: Appeal dismissed.


David P. Joyce, Geauga County Prosecutor, and Nicholas A. Burling, Assistant
Prosecuting Attorney, Courthouse Annex, 231 Main Street, Chardon, OH 44024 (For
Plaintiff-Appellee).

Ricardo Anderson, pro se, 12450 Merritt Road, Chardon, OH              44024 (Defendant-
Appellant).



TIMOTHY P. CANNON, P.J.

        {¶1}     Appellant, Ricardo Anderson, appeals from the September 14, 2012

judgment of the Geauga County Court of Common Pleas denying his pro se “Motion to

Terminate Counsel and Appoint New One.”

        {¶2}     On October 10, 2012, appellee, the state of Ohio, filed a motion to dismiss

for lack of jurisdiction. The state contends the trial court’s judgment is not a final,

appealable order under R.C. 2505.02.
       {¶3}   On October 19, 2012, appellant filed a pro se response. Appellant asserts

that this court should overrule the state’s motion to dismiss because the trial court’s

order affected his substantial right to adequate counsel.

       {¶4}   On October 25, 2012, appellant filed a pro se supplemental response.

Appellant reiterated that his counsel is ineffective and that we should overrule the

state’s motion to dismiss because the trial court’s judgment is a final order.

       {¶5}   In dealing with a similar matter, this court stated the following in State v.

Rivera, 11th Dist. No. 2010-A-0037, 2010-Ohio-4559, ¶2-18:

       {¶6}   According to Section 3(B)(2), Article IV of the Ohio Constitution, a

              judgment of a trial court can be immediately reviewed by an

              appellate court only if it constitutes a ‘final order’ in the action.

              Germ v. Fuerst, 11th Dist. No. 2003-L-116, 2003-Ohio-6241, ¶3. If

              a lower court’s order is not final, then an appellate court does not

              have jurisdiction to review the matter and the matter must be

              dismissed. Gen. Acc. Ins. Co. v. Ins. of N. Am., 44 Ohio St.3d 17,

              20 (1989).    For a judgment to be final and appealable, it must

              satisfy the requirements of R.C. 2505.02 and if applicable, Civ.R.

              54(B).

       {¶7}   Pursuant to R.C. 2505.02(B), there are seven categories of ‘final

              orders,’ and if a trial court’s judgment satisfies any of them, it will be

              considered a ‘final order’ which can be immediately appealed and

              reviewed by a court of appeals.

       {¶8}   R.C. 2505.02(B) states, in part, that:




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{¶9}   ‘An order is a final order that may be reviewed, affirmed, modified,

       or reversed, with or without retrial, when it is one of the following:

{¶10} ‘(1) An order that affects a substantial right in an action that in effect

       determines the action and prevents a judgment;

{¶11} ‘(2) An order that affects a substantial right made in a special

       proceeding or upon a summary application in an action after

       judgment;

{¶12} ‘(3) An order that vacates or sets aside a judgment or grants a new

       trial;

{¶13} ‘(4) An order that grants or denies a provisional remedy and to

       which both of the following apply:

{¶14} ‘(a) The order in effect determines the action with respect to the

       provisional remedy and prevents a judgment in the action in favor

       of the appealing party with respect to the provisional remedy.

{¶15} ‘(b) The appealing party would not be afforded a meaningful or

       effective remedy by an appeal following final judgment as to all

       proceedings, issues, claims, and parties in the action.

{¶16} ‘(5) An order that determines that an action may or may not be

       maintained as a class action;

{¶17} ‘(6) An order determining the constitutionality of any changes to the

       Revised Code * * *;

{¶18} ‘(7) An order in an appropriation proceeding * * *.’




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{¶19} The court in Freer v. Loma Enters., Inc., 7th Dist. No. 98 CA 194,

      1999 Ohio App.LEXIS 6422 (Dec. 30, 1999), held that an order

      denying a motion for disqualification of counsel is not an order that

      determines an entire action, vacates or sets aside a judgment,

      grants a new trial, or determines class action status, thereby

      making R.C. 2505.02(B)(1), (3), and (5) inapplicable. Additionally, *

      * * R.C. 2505.02(B)(6) and (7), having to do with the

      constitutionality of any changes to the Revised Code and

      appropriation proceedings, do not apply to the present matter.

{¶20} Furthermore, regardless of whether a substantial right has been

      affected in this case, the order was not made after judgment under

      R.C. 2505.02(A)(2). Moreover, the order was not made in a special

      proceeding as the underlying criminal action does not fit its

      definition as set forth in R.C. 2505.02(B)(2). See State v. Saadey,

      7th Dist. No. 99 CO 49, 2000 Ohio App.LEXIS 3552, ¶7 (June 30,

      2000); State v. Williams, 6th Dist. No. L-03-1070, L-03-1071, 2003-

      Ohio-2533, ¶21.

{¶21} Therefore, in order to be final and immediately reviewable by this

      court, it would have to be determined that the denial of the motion

      to disqualify is a provisional remedy under R.C. 2505.02(A)(3). In

      Freer, 1999 Ohio App.LEXIS 6422 at *7, the court held that ‘* * * a

      motion for disqualification of counsel is ancillary to the main action




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             and thus constitutes a provisional remedy as defined by R.C.

             2505.02(A)(3).’

       {¶22} The next step in the provisional remedy analysis would be to

             examine whether the requirements of R.C. 2505.02(B)(4) have

             been satisfied. When a court rules on a motion for disqualification,

             the resulting order determines the action with respect to the motion

             and prevents a judgment in favor of the appealing party with

             respect to the motion. Freer, 1999 Ohio App.LEXIS 6422 at *8.

       {¶23} This court conceded that the order in Rivera satisfied the first prong of

provisional remedy. The only remaining issue to examine was whether the second

prong of provisional remedy—that the appealing party would not be afforded a

meaningful or effective remedy by an appeal after the final judgment—had been

satisfied.

       {¶24} We went on to state the following in Rivera at ¶19:

       {¶25} In concluding that the denial of a motion to disqualify is not a final

             appealable order and effectively reviewable after final judgment, the

             Freer court held that ‘any allegation of damage to appellants’

             defense can be rectified. For instance, if appellants establish that

             they were prejudiced by the court’s refusal to disqualify appellees’

             counsel, then appellants may receive a new trial. As a result, a

             decision in favor of appellants on an appeal after final judgment will

             not be a hollow victory.’ 1999 Ohio App.LEXIS 6422 at *9. In

             addition, ‘an immediate appeal is not mandated to afford appellants




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             a meaningful or effective review. 1999 Ohio App.LEXIS 6422 at

             *10. See also Bernbaum v. Silverstein, 62 Ohio St.2d 445 (1980).

      {¶26} In the present matter, like Rivera, the trial court’s judgment denying

appellant’s pro se “Motion to Terminate Counsel and Appoint New One” does not satisfy

any of the seven categories of “final orders” under R.C. 2505.02(B). In addition, we

note that there is no other final order subject to appeal at this time since appellant has

yet to be convicted and sentenced. See Crim.R. 32(C); State v. Lester, 130 Ohio St.3d

303, 2011-Ohio-5204, paragraph one of the syllabus.

      {¶27} Thus, since the trial court’s September 14, 2012 judgment is not a final,

appealable order, we lack jurisdiction over this matter. Appellee’s motion to dismiss is

hereby granted.

      {¶28} Appeal dismissed.



DIANE V. GRENDELL, J.,

CYNTHIA WESTCOTT RICE, J.,

concur.




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