[Cite as State v. Bilka, 2012-Ohio-3924.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                     JUDGES:
                                                  Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                        Hon. Sheila G. Farmer, J.
                                                  Hon. Julie A. Edwards, J.
-vs-
                                                  Case No. 11CA127
DAVID BILKA

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Richland County Common
                                               Pleas Court, Case No. 2011CR234


JUDGMENT:                                      Dismissed


DATE OF JUDGMENT ENTRY:                        August 22, 2012


APPEARANCES:


For Plaintiff-Appellee                         For Defendant-Appellant


JAMES J. MAYER, JR.                            WILLIAM C. FITHIAN, III
PROSEUCUTING ATTORNEY                          111 N. Main Street
RICHLAND COUNTY, OHIO                          Mansfield, Ohio 44902

BY: JOHN C. NIEFT
Assistant Prosecuting Attorney
38 South Park Street
Mansfield, Ohio 44902
Richland County, Case No. 11CA127                                                          2

Hoffman, P.J.

         {¶1}   Defendant-appellant David Bilka appeals his criminal convictions entered

by the Common Pleas Court of Richland County via Sentencing Entry filed on

November 10, 2011. The state of Ohio is plaintiff-appellee.

                                       STATE OF THE CASE1

         {¶2}   Appellant was indicted on four counts: Count I, Burglary with a forfeiture

specification; Count II, Breaking and Entering with a forfeiture specification; Count III,

Receiving Stolen Property with a forfeiture specification; and Count IV, Safecracking

with a forfeiture specification. Appellant pled not guilty to the charges and the case

proceeded to jury trial.

         {¶3}   During closing argument, the prosecutor stated:

         {¶4}   “Now, I told you that I was going to probably just get rid of the breaking

and entering charge. After discussing that with counsel and the Court, we’ve decided to

let you decide” Transcript at p. 319.         Following closing arguments, the trial court

instructed the jury on the elements of all four counts and also how to complete the

verdict forms for all four counts.

         {¶5}   The jury returned executed guilty verdict forms for Counts I, III, and IV and

the forfeiture specification. The jury did not return a verdict form on Count II, Breaking

and Entering. The jury was discharged with no mention being made by anyone as to

Count II.

         {¶6}   At the sentencing hearing held on November 9, 2011, the trial court

stated:



1
    A rendition of the facts is unnecessary for our disposition of this Appeal.
Richland County, Case No. 11CA127                                                       3


       {¶7}      “The record would indicate that the Defendant came before this Court on

the 31st day of October, 2011, charged with four counts of felony, Counts 1 and 2 being

charged in the alternative burglary and breaking and entering.” Transcript at p. 360.

The trial court filed its Sentencing Entry on November 10, 2011, reflecting Appellant’s

convictions for burglary, receiving stolen property, safecracking and the forfeiture

specification.    No disposition was made with respect to the breaking and entering

charge.

       {¶8}      We have reviewed the transcript.     It does not reflect the burglary and

breaking and entering charges were charged in the alternative. As noted supra, it is

clear Appellee desired the jury reach a verdict on that charge.

       {¶9}      While we recognize had the jury convicted Appellant on Count II, it would

likely to have been merged with Count I, the fact remains there has been no verdict nor

other disposition of Count II. Accordingly, we find no final appealable order exists and

this Court is without jurisdiction to entertain Appellant’s appeal at this time.

By: Hoffman, P.J.

Farmer, J. and

Edwards, J. concur

                                               s/ William B. Hoffman _________________
                                               HON. WILLIAM B. HOFFMAN


                                               s/ Sheila G. Farmer __________________
                                               HON. SHEILA G. FARMER


                                               s/ Julie A. Edwards___________________
                                               HON. JULIE A. EDWARDS
Richland County, Case No. 11CA127                                                  4


           IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT


STATE OF OHIO                              :
                                           :
       Plaintiff-Appellee                  :
                                           :
-vs-                                       :         JUDGMENT ENTRY
                                           :
DAVID BILKA                                :
                                           :
       Defendant-Appellant                 :         Case No. 11CA127


       For the reason stated in our accompanying Opinion, this appeal is ordered

dismissed. Costs to Appellant.




                                           s/ William B. Hoffman _________________
                                           HON. WILLIAM B. HOFFMAN


                                           s/ Sheila G. Farmer __________________
                                           HON. SHEILA G. FARMER


                                           s/ Julie A. Edwards___________________
                                           HON. JULIE A. EDWARDS
