[Cite as State v. Beyduk , 2018-Ohio-1690.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                              WARREN COUNTY




 STATE OF OHIO,                                     :
                                                          CASE NO. CA2017-10-144
           Plaintiff-Appellee,                      :
                                                               OPINION
                                                    :           4/30/2018
   -vs-
                                                    :

 ANDREY P. BEYDUK,                                  :

           Defendant-Appellant.                     :



                    CRIMINAL APPEAL FROM WARREN COUNTY COURT
                                Case No. 2006CRB00086



David P. Fornshell, Warren County Prosecuting Attorney, 520 Justice Drive, Lebanon, Ohio
45036, for plaintiff-appellee

Engel & Martin, LLC, Mary K. Martin, 4660 Duke Drive, Suite 101, Mason, Ohio 45040, for
defendant-appellant



          M. POWELL, J.

          {¶ 1} Defendant-appellant, Andrey Beyduk, appeals a decision of the Warren

County Court denying his motion for a new trial.

          {¶ 2} Appellant, a Russian citizen and United States legal permanent resident, was

convicted of domestic violence in 2006 following a bench trial. Ten years later, upon

applying to become a United States citizen, appellant was informed by the United States

Department of Homeland Security that he would be deported due to his domestic violence
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conviction. Consequently, in April 2017, appellant filed a motion for leave to file a motion

for a new trial ("motion for leave") pursuant to Crim.R. 33. Appellant argued that multiple

prejudicial errors occurred at trial, to wit, (1) the trial court did not advise him of his right to

have an interpreter and failed to provide him with an interpreter; (2) the trial court allowed

appellant's wife, the alleged victim, to be an interpreter; (3) the trial court allowed appellant

to waive his right to counsel without warning him that a conviction could have adverse

immigration consequences; and (4) the state's case was based upon hearsay.

       {¶ 3} A hearing on the motion for leave was held on May 23, 2017. During the

hearing, the state informed the trial court that appellant's motion involved a two-step

process, requiring the trial court to first determine whether to grant the motion for leave

before a motion for a new trial could be filed. Upon inquiry from the trial court, defense

counsel advised the court that the motion for a new trial would be based upon the same

grounds and documentation as those of the motion for leave. The trial court then stated,

               Then I'm going to grant the initial motion for leave to file for the
               new trial and I will take under advisement the motion for new
               trial, based on the documents that have been filed by both
               [defense counsel] and the State.

       {¶ 4} Subsequently, defense counsel orally moved for a new trial. The trial court

then stated that the matter would be taken under advisement. The trial court did not

journalize an entry reflecting that the motion for leave was granted. However, later that day,

the trial court issued a judgment entry that simply stated, "Motion Overruled."

       {¶ 5} On June 12, 2017, appellant filed a motion and supporting memorandum,

asking the trial court "to issue findings of fact and conclusions of law for its decision of May

23, 2017 to overrule his motion for leave to file application for a new trial." On August 11,

2017, the trial court issued an "Order and Entry" comprised of three separate sections. As

applicable to this appeal, the introductory section of the entry explained that "this matter

came before the Court upon Defendant's Motion for Leave," "Defendant's Motion is based

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on [the following] four issues," "This Court held a hearing on this matter on May 23, 2017,"

and "After the hearing, this Court reviewed all motions, responses, transcript and law

presented. This Court overruled the motion for leave to file a motion for new trial. Defendant

filed a request for findings of fact and conclusions of law." (Emphasis added.) Under the

Proceedings heading, the trial court described in detail what happened at trial. Finally,

under the Findings of Fact and Conclusions of Law heading, the trial court addressed and

rejected each of the four issues raised by appellant before concluding, "Therefore, this

Court overrules Defendant's motion."

       {¶ 6} Appellant now appeals, raising one assignment of error:

       {¶ 7} THE TRIAL COURT ERRED IN DENYING APPELLANT'S REQUEST FOR A

NEW TRIAL.

       {¶ 8} Appellant argues the trial court erred in denying his motion for a new trial. For

the reasons that follow, we find that this court has no jurisdiction to review the merits of this

appeal.

       {¶ 9} A trial court's judgment entry denying a motion for leave to file a motion for a

new trial is a final appealable order. See State v. Morris, 2d Dist. Montgomery Nos. 26949

and 26960, 2017-Ohio-1196; State v. Collins, 10th Dist. Franklin No. 01AP-394, 2001 Ohio

App. LEXIS 4920 (Nov. 6, 2001); and State v. Brooks, 8th Dist. Cuyahoga No. 75522, 1999

Ohio App. LEXIS 3596 (Aug. 5, 1999). Likewise, a trial court's denial of a motion for a new

trial is a final appealable order. See State v. Moore, 188 Ohio App.3d 726, 2010-Ohio-1848

(4th Dist.); State v. Workman, 12th Dist. Butler No. CA2002-12-302, 2003-Ohio-4242; and

Brooks (finding that because trial courts have no duty to issue findings of fact and

conclusions of law when denying a motion for a new trial in a criminal case, a trial court's

denial of a motion for a new trial is a final appealable order).

       {¶ 10} Whether the trial court's May 23, 2017 judgment entry succinctly overruling


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appellant's motion was a denial of appellant's motion for leave or a denial of his motion for

a new trial, the judgment entry was a final appealable order. Accordingly, appellant was

required to file a notice of appeal within 30 days of the May 23, 2017 judgment entry. App.R.

3(A) and 4(A). Because appellant failed to do so, this court lacks jurisdiction to review the

merits of this appeal. See Collins.

        {¶ 11} Alternatively, we note that while appellant challenges the denial of his motion

for a new trial on appeal, his argument is based entirely upon the erroneous premise that

his motion for leave was granted. Likewise, the state's brief erroneously asserts that "the

trial court granted Beyduk leave to file his motion for new trial and ultimately decided the

motion against him on its merits." However, appellant's motion asking the trial court to issue

findings of fact and conclusions of law to explain the basis of its May 23, 2017 judgment

entry "overrul[ing] his motion for leave to file application for a new trial," treated the trial

court's May 23, 2017 entry as denying his motion for leave, as did the trial court's August

11, 2017 Order and Entry.1 Appellant does not challenge the denial of his motion for leave

on appeal. Accordingly, the assignment of error, which addresses the merits of his motion

for a new trial is moot, and we need not address it. See State v. Jackson, 8th Dist.

Cuyahoga No. 105530, 2018-Ohio-276.

        {¶ 12} Appeal dismissed.


        HENDRICKSON, P.J., and RINGLAND, J., concur.




1. We are mindful that at the end of the hearing on appellant's motion for leave, the trial court stated, "Then
I'm going to grant the initial motion for leave to file for the new trial and I will take under advisement the motion
for new trial, based on the documents that have been filed by both [defense counsel] and the State." However,
it is well-established that a court speaks only through its journal entries and not by oral pronouncement or
through decisions. State v. Halsey, 12th Dist. Butler No. CA2014-10-211, 2015-Ohio-3405, ¶ 14. See also
State v. Smith, 12th Dist. Butler No. CA2009-02-038, 2010-Ohio-1721, ¶ 59 (without a journal entry, a decision
or finding of a court has no force or effect). Therefore, even though the trial court orally announced at the
hearing that it was granting appellant's motion for leave, the court was free to change its mind and deny the
motion for leave.
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