[Cite as State v. Walkup, 2017-Ohio-8900.]


                                       COURT OF APPEALS
                                     MORGAN COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                      JUDGES:
STATE OF OHIO                                 :       Hon. W. Scott Gwin, P.J.
                                              :       Hon. Wiliam B. Hoffman, J.
                         Plaintiff-Appellee   :       Hon. Earle E. Wise
                                              :
-vs-                                          :
                                              :       Case No. 17AP0006
BOBBY WALKUP                                  :
                                              :
                    Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                          Criminal appeal from the Morgan County
                                                  Court of Common Pleas, Case No. CR95-
                                                  85

JUDGMENT:                                         Dismissed




DATE OF JUDGMENT ENTRY:                           December 5, 2017


APPEARANCES:

For Plaintiff-Appellee                            For Defendant-Appellant

MARK HOWDYSHELL                                   BOBBY WALKUP
PROSECUTING ATTORNEY                              #336-029
19 EAST MAIN STREET                               BOX 57
MCCONNELSVILLE, OH 43756                          MARION, OH 43301
[Cite as State v. Walkup, 2017-Ohio-8900.]


Gwin, P.J.

        {¶1}    Appellant Bobby Walkup [“Walkup”] appeals from the May 1, 2017

Judgment Entry of the Morgan County Court of Common Pleas that denied his motion for

shock probation.

                                         Facts and Procedural History

        {¶2}    On January 11, 1996, the Morgan County Grand Jury indicted Walkup on

one count of aggravated murder, in violation of R.C. 2703.01, with a firearm specification;

one count of aggravated arson, in violation of R.C. 2909.02(A)(2); and one count of

assault of a peace officer, in violation of R.C. 2903.11(A)(1). The aggravated murder and

aggravated arson charges arose out of the shooting death of Walkup’s wife, Ella

Emmajean Walkup, and subsequent fire in their home on December 23, 1995. The

assault charge involved Morgan County Deputy Sheriff Jerry Hallowell.

        {¶3}    The matter proceeded to trial on August 5, 1996. After hearing all the

evidence and deliberations, the jury returned a verdict of not guilty of aggravated murder,

but guilty of murder, the lesser-included offense, and the firearm specification; not guilty

of aggravated arson; and guilty of assault. By Judgment Entry dated August 14, 1996,

the trial court sentenced Walkup to a total term of incarceration of fifteen years to life with

three years actual incarceration for the firearm specification. Walkup filed a timely notice

of appeal to this Court. This Court affirmed Walkup’s convictions and sentence. See,

State v. Walkup, 5th Dist. Morgan No. CA 96 06, 1997 WL 973474(Dec. 24, 1997),

[Walkup I].

        {¶4}    On March 29, 1999, Walkup filed a Petition to Vacate or Set Aside

Judgment and/or Sentence pursuant to R.C. 2953.21 and 2953.23. See, State v. Walkup,
Morgan County, Case No. 17AP0006                                                          3

5th Dist. Morgan No. 99CA06, 2000 WL 1543(Dec. 21, 1999) [Walkup II]. The trial court

denied Walkup’s petition and this court affirmed the trial court’s decision. Id.

       {¶5}    On November 10, 2016, Walkup filed a Motion for Shock Probation. The

trial court denied the motion by Judgment Entry filed May 1, 2017.

                                       Assignment of Error

       {¶6}    Walkup presents one assignment of error for our review,

       {¶7}    “I. “THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN THE

TRIAL COURT FAILED TO DETERMINE THE DEFENDANT [SIC.] MOTION FOR

SHOCK PROBATION UNDER THE STATUTORY CRITERIA UNDER OHIO LAW R.C.

2929.201      IN   VIOLATION    OF    THE     DEFENDANT        [SIC.]   UNTIED     STATES

CONSTITUTIONAL RIGHTS AMENDMENT 14 DUE PROCESS OF LAW.”

                                        Law and Analysis

       {¶8}    Shock probation was available to defendants who committed their crimes

prior to July 1, 1996 pursuant to R.C. 2947.061. State v. Darby, 5th Dis., Richland No.

14-CA-80, 2015-Ohio-2076, citing State v. Coffman, 91 Ohio St.3d 125, 126 742 N.E.2d

644 (2001). The shock probation statue, R.C. 2947.061, was repealed and the current

judicial release statute, R.C. 2929.201, became effective via Senate Bill 2 on July 1, 1996.

State v. Moore, 7th Dist., Belmont No. 13 BE 7, 2013-Ohio-4454, 999 N.E.2d 223. In

1995, the former shock probation statute R.C. 2947.061 stated,

               (B) Subject to sections 2951.02 to 2951.09 of the Revised Code and

       notwithstanding the expiration of the term of court during which the

       defendant was sentenced, the trial court, upon the motion of the defendant,

       may suspend the further execution of the defendant’s sentence and place
Morgan County, Case No. 17AP0006                                                         4


       the defendant on probation upon the terms that the court determines, if the

       defendant was sentenced for an aggravated felony of the first, second, or

       third degree, is not serving a term of actual incarceration, is confined in a

       state correctional institution, and files the motion at any time after serving

       six months in the custody of the department of rehabilitation and correction.

       {¶9}   R.C. 2929.201 as presently enacted provides,

              Notwithstanding the time limitation for filing a motion under former

       section 2947.061 of the Revised Code, an offender whose offense was

       committed before July 1, 1996, and who otherwise satisfies the eligibility

       criteria for shock probation under that section as it existed immediately prior

       to July 1, 1996, may apply to the offender’s sentencing court for shock

       probation under that section on or after September 15, 2014. Not more than

       one motion may be filed by an offender under this section. Division (C) of

       former section 2947.061 of the Revised Code does not apply to a motion

       filed under this section. A presentence investigation report is not required

       for shock probation to be granted by reason of this section.

Emphasis added. Walkup’s committed his crimes on December 23, 1995. Walkup

I at *1. Therefore, the 1995 version of R.C. 2947.061 controls his case.

       Walkup is not eligible for shock probation.

       {¶10} In 1995, R.C. 2951.02 criteria for probation; conditions of probation;

community service work; suspension of sentence; conditions; effect of use of firearm;

ignition interlock devices read, in pertinent part,
Morgan County, Case No. 17AP0006                                                     5


            (F) An offender shall not be placed on probation, and shall not

     otherwise have his sentence of imprisonment suspended pursuant to

     division (D)(2) or (4) of section 2929.51 of the Revised Code when any of

     the following applies:

            (1) The offense involved is aggravated murder or murder.

            (2) The offender is a repeat offender or a dangerous offender, as

     defined in section 2929.01 of the Revised Code.

            (3) The offense involved was not a violation of section 2923.12 of the

     Revised Code and was committed while the offender was armed with a

     firearm or dangerous ordnance, as defined in section 2923.11 of the

     Revised Code.

            (4) The offense involved is a violation of section 2907.02 or 2907.12

     of the Revised Code.

            (5) The offender is not eligible for probation or shock probation

     pursuant to division (C) of section 2903.06 or 2903.07 of the Revised Code

     or is sentenced to a term of actual incarceration.

            (6) The offense involved was a violation of section 2923.12 of the

     Revised Code, the weapon involved in the offense was a firearm or

     dangerous ordnance, as defined in section 2923.11 of the Revised Code,

     and the offense involved was committed aboard an aircraft or with purpose

     to carry a concealed firearm or dangerous ordnance, as defined in section

     2923.11 of the Revised Code, aboard an aircraft.
Morgan County, Case No. 17AP0006                                                             6


Emphasis added.       Walkup was convicted of murder with a firearm specification.

Therefore, he is statutorily ineligible for shock probation.

       The denial of a motion for shock probation is not a final, appealable order.

       {¶11} Even if a party does not raise the issue, this court must address, sua sponte,

whether there is a final appealable order ripe for review. State ex rel. White vs. Cuyahoga

Metro. Hous. Aut., 79 Ohio St.3d 543, 544, 1997-Ohio-366, 684 N.E.2d 72.

       {¶12} Appellate courts have jurisdiction to review the final orders or judgments of

lower courts within their appellate districts. Section 3(B) (2), Article IV, Ohio Constitution.

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. General Acc. Ins. Co. vs. Insurance

of North America, 44 Ohio St.3d 17, 20, 540 N.E.2d 266(1989); Harris v. Conrad, 12th

Dist. No. CA-2001-12 108, 2002-Ohio-3885. 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). Denham

v. New Carlisle, 86 Ohio St.3d 594, 596, 716 N.E.2d 184 (1999); Ferraro v. B.F. Goodrich

Co., 149 Ohio App.3d 301, 2002-Ohio-4398, 777 N.E.2d 282. If an order is not final and

appealable, an appellate court has no jurisdiction to review the matter and it must be

dismissed.

       {¶13} A motion denying shock probation is not a final, appealable order. State v.

Coffman, 91 Ohio St.3d 125, 126, 2001-Ohio-296, 742 N.E.2d 644 (2001). The Coffman

court determined that an order arising out of an action instituted upon a motion brought

under the former shock-probation statute, R.C. 2947.061, was an order made in a “special

proceeding.” Id. at 127. However, the court held that a defendant had no “substantial
Morgan County, Case No. 17AP0006                                                              7


right” to shock probation under the definition of “substantial right” set forth in R.C. 2505.02.

Id. at 127–128.

       {¶14} In State v. Crossty, III, 1st Dist. Hamilton No. C-150513, 2016-Ohio-3265,

the Court of Appeals noted,

              The new shock-probation statute, R.C. 2929.201, became effective

       on September 15, 2014, and its provisions apply only to those offenders

       who committed offenses before July 1, 1996.             The statute essentially

       incorporates former R.C. 2947.061 and creates no legal right to shock

       probation. See State v. Schlosser, 2d Dist. Montgomery No. 26888, 2016–

       Ohio–731, ¶ 6; compare State v. Thompson, ––– Ohio St.3d ––––, 2016–

       Ohio–2769, –––N.E.2d ––––, ¶ 9 (holding that “an order determining

       whether an offender receives jail-time credit affects a substantial right * * *

       because receiving properly determined jail-time credit implicates an

       offender’s liberty interest * * * and the right to jail-time credit is protected by

       at least three statutory provisions .”).

              Coffman is dispositive of our issue in this case, as the statutory

       definition of a substantial right has not changed, see R.C. 2505.02(A)(1),

       nor has the discretionary nature of shock probation.             We determine,

       therefore, that “the denial of a motion for shock probation under R.C.

       2929.201, like the denial of a motion under R.C. 2947.061, is not a final

       appealable order.” Schlosser at ¶ 6.

Crossty, III at 2016-Ohio-3265, ¶11; Accord, State v. Mack, 10th Dist. Franklin No. 16AP-

680, 2017-Ohio-7417, ¶26.
Morgan County, Case No. 17AP0006                                                   8

                                        Conclusion

      {¶15} Accordingly, this Court is without jurisdiction to review the May 1, 2017

Judgment Entry of the Morgan County Court of Common Pleas overruling Walkup’s

motion for shock probation.

      {¶16} Therefore, we dismiss this appeal.

      {¶17} Appeal dismissed.

      {¶18} IT IS SO ORDERED.



By Gwin, P.J.,

Hoffman, J., and

Wise, Earle, J., concur
