[Cite as State v. Chesser, 2013-Ohio-5567.]


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

STATE OF OHIO,                 :
                               :
     Plaintiff-Appellee,       :    Case No. 12CA48
                               :
     vs.                       :
                               :    DECISION AND JUDGMENT
JOSEPH CHESSER,                :    ENTRY
                               :
    Defendant-Appellant.       :    Released: 12/11/13
_____________________________________________________________
                         APPEARANCES:

David J. Winkelmann, Millfield, Ohio, for Appellant.

Patrick J. Lang, Athens City Law Director, Athens, Ohio, for Appellee.
_____________________________________________________________

McFarland, P.J.

        {¶1} This is an appeal from an Athens Municipal Court judgment

entry imposing Appellant Joseph Chesser’s original jail term of twenty-

seven days after Appellant was found guilty of violating his previously

imposed probation. Appellant had previously pled no contest to a first

degree misdemeanor violation of R.C. 4301.69(E)(1), underage possession

of alcohol. Appellant’s counsel has advised this Court that, after reviewing

the record, he cannot find a meritorious claim for appeal. As a result,

Appellant’s counsel has moved to withdraw under Anders v. California, 386

U.S. 738, 87 S.Ct. 1396 (1967).
Athens App. No. 12CA48                                                                                     2


           {¶2} However, because our independent review of the record

indicates that the trial court's February 20 and December 19, 2012, entries

were not final, appealable orders, we are without jurisdiction to consider this

matter and therefore must dismiss the appeal. In dismissing this appeal,

however, in accordance with the procedure set forth in Anders, the motion of

counsel for Appellant requesting to withdraw as counsel is granted.

                                                   FACTS

           {¶3} Appellant was charged with a first degree misdemeanor

violation of R.C. 4301.69(E)(1), underage possession of alcohol on August

16, 2011. Appellant initially pled not guilty but later changed his plea to no

contest on February 20, 2012. This case was identified below as

11CRB02256. In what purports to be a sentencing entry dated February 20,

2012, Appellant was sentenced to thirty days in jail, credit for time served,

with twenty-seven days suspended, and was placed on probation.1 This

form, however, does not identify the name of the offense to which Appellant

was pleading, nor does it include the code section or degree of offense. It

simply references case number 11CRB02256.

           {¶4} A notice of probation violation was filed on June 21, 2012. The

record indicates that a probation revocation hearing was held on December


1
    This Court is unable to decipher the exact sentence, which was handwritten by the trial court judge.
Athens App. No. 12CA48                                                           3


19, 2012, however that transcript was not transmitted to this Court, despite

Appellant’s request to the clerk to do so. The record further contains an

untitled form dated December 19, 2012, which purports to be a sentencing

entry, signed by the trial court judge indicating that the previously

suspended twenty-seven-day jail term was being imposed. Again, there is

no stated criminal offense, degree of offense or code section listed on this

form, but rather the form simply references case number 11CRB02256.

Appellant did not file a direct appeal from his original conviction for

underage drinking but now appeals from the decision revoking his probation

and imposing his suspended jail term. It is from this purported sentencing

entry that Appellant now brings his appeal.

                             LEGAL ANALYSIS

      {¶5} In the current action, Appellant’s counsel advises that the appeal

is wholly frivolous and has asked permission to withdraw. Pursuant to

Anders, counsel has filed a brief raising three potential assignments of error

for this Court’s review. Counsel’s potential assignments of error are as

follows:

“I.   INEFFECTIVE ASSISTANCE OF COUNSEL IN FAILING TO
      CHALLENGE THE ALLEGED VIOLATION AT ISSUE ON
      STATE AND FEDERAL CONSTITUTIONAL GROUNDS.

II.   PLAIN ERROR BY THE TRIAL COURT ON THE SAME
      GROUNDS.
Athens App. No. 12CA48                                                          4



III.   THAT THE PLEA WAS NOT MADE KNOWINGLY,
       VOLUNTARILY OR INTELLIGENTLY.”

However, after independently reviewing the record, based upon the

following reasons, we conclude that neither of the trial court’s purported

sentencing entries were final appealable orders. As such, we do not reach

the merits of Appellant’s potential assignments of error.

       {¶6} The record before us contains two different documents,

purportedly sentencing entries, one related to a conviction for an original

charge and the other issued after a probation revocation hearing. Although

both documents contain the case caption, the sentence, the case number and

are signed by the judge and file stamped in the Athens Municipal Court,

only the February 20, 2012, form contains the plea of Appellant and the

finding of guilty by the trial court, and neither form identifies the name or

degree of the offense or the code section at issue.

       {¶7} “A judgment of conviction is a final order subject to appeal

under R.C. 2505.02 when it sets forth (1) the fact of the 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. While both

entries at issue contain the sentence, the judge's signature, and the time
Athens App. No. 12CA48                                                        5


stamp indicating the entry upon the journal by the clerk, the fact of

conviction is in question on each. Although the entries reference the case

number, the entries themselves do not indicate the names of the crimes, nor

do they contain a code section or degree of offense. In order for us to

determine what Appellant originally pled guilty to, and for that matter

whether Appellant even pled to the probation violation, we must look back

to the complaint to determine the charged offense, and in the case of the

probation violation, the transcript of the revocation hearing, which as

mentioned above, was not transmitted on appeal.

      {¶8} We cannot combine two documents to create a final, appealable

order. This is so because “[t]he Supreme Court of Ohio has held in a

noncapital criminal case that ‘[o]nly one document can constitute a final

appealable order.’ ” City of Logan v. Conkey, 4th Dist. Hocking No. 11

CA34, 2012-Ohio-4687, ¶ 6; quoting State v. Thompson, 4th Dist. Ross No.

10CA3177, 2011-Ohio-1564, ¶ 11; quoting State v. Baker, 119 Ohio St.3d

197, 2008-Ohio-3330, 893 N.E.2d 163, ¶ 17. As such, not only does the trial

court’s December 19, 2012, entry not satisfy the requirements for a final,

appealable order, neither did the original sentencing entry dated February

20, 2012.
Athens App. No. 12CA48                                                     6


      {¶9} Consequently, because the entries related to Appellant's

underlying convictions are not final, appealable orders, we conclude that we

lack jurisdiction to consider the present appeal. Accordingly, based upon the

foregoing, we must dismiss the appeal. As indicated, however, we also

grant counsel’s motion to withdraw pursuant to Anders v. California.

                                                   APPEAL DISMISSED.
Athens App. No. 12CA48                                                                       7


                                   JUDGMENT ENTRY


       It is ordered that the APPEAL BE DISMISSED. Costs herein are assessed to
Appellant.

       The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the Athens
County Municipal 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.

Harsha, J. & Hoover, J.: Concur in Judgment and Opinion.

                                               For the Court,


                                               BY:     ______________________________
                                                       Matthew W. McFarland
                                                       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.
