[Cite as State v. Yenyo, 2018-Ohio-5187.]


                                     IN THE COURT OF APPEALS

                                 ELEVENTH APPELLATE DISTRICT

                                     ASHTABULA COUNTY, OHIO


 STATE OF OHIO,                                    :         OPINION

                   Plaintiff-Appellee,             :
                                                             CASE NO. 2018-A-0017
         - vs -                                    :

 JEFFERY M. YENYO,                                 :

                   Defendant-Appellant.            :


 Criminal Appeal from the Ashtabula Municipal Court, Case No. 18 TRC 00003.

 Judgment: Appeal dismissed.


 Lori B. Lamer, Assistant Ashtabula City Solicitor, Ashtabula Municipal Court, 110 West
 44th Street, Ashtabula, OH 44004 (For Plaintiff-Appellee).

 Malcolm Stewart Douglas, 113 North Chestnut Street, Jefferson, OH                 44047 (For
 Defendant-Appellant).



THOMAS R. WRIGHT, P.J.

        {¶1}      Appellant, Jeffery M. Yenyo, appeals the trial court’s decision purporting to

both vacate and overrule a magistrate’s decision sentencing him for driving under the

influence and reckless operation. The appealed decision is signed by Judge Laura

DiGiacomo and designates David C. Sheldon as a magistrate. At issue is whether

Sheldon was serving in his capacity as a magistrate or acting judge.
       {¶2}   Appellant was cited for driving while intoxicated and reckless operation. He

appeared before Sheldon, entered pleas to both charges, was found guilty, and

sentenced.

       {¶3}   On the same day Sheldon signed the form sentencing entry as “JUDGE,”

Judge DiGiacomo, in a separate judgment on the bottom margin of the form, both vacated

and overruled the sentence. In so doing, Judge DiGiacomo deemed Sheldon’s decision

as a “Magistrate’s Decision,” crossed out the word “JUDGE” and wrote “Mag” next to

Sheldon’s signature. One day later, Judge DiGiacomo granted the state’s motion to

dismiss the entire case without prejudice.

       {¶4}   In appealing Judge DiGiacomo’s order vacating and overruling, appellant

assigns the following as error:

       {¶5}   “The Trial Court committed reversible error by ‘overruling’ a Judgment Entry

of plea/sentence and conviction which was not otherwise defective on its face, and

vacating Defendant-Appellant’s Judgment of pleas and sentence.”

       {¶6}   Disposition depends upon whether Sheldon was serving as a court

magistrate or acting judge when he rendered decision. If serving as a magistrate, his

decision had no effect until rejected or approved by Judge DiGiacomo. A magistrate can

accept pleas, make findings of guilt or innocence, and recommend a penalty in a

misdemeanor case. Crim.R. 19(C)(1)(c)(ii).       See also Traf.R. 14(A).     However, a

“magistrate’s decision is not effective unless adopted by the court.” Crim.R. 19(D)(4)(a).

       {¶7}   In her judgment vacating and overruling, Judge DiGiacomo deems

Sheldon’s entry to be a magistrate’s decision. Of record, there is no judgment entry

appointing Sheldon as the acting judge.




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      {¶8}   On appeal, the appellant has the burden of establishing the alleged error by

reference to matters in the record. State v. Palo, 11th Dist. Ashtabula No. 2015-A-0001,

2015-Ohio-5212, ¶5. Here, appellant cannot sustain this burden as to Sheldon’s status.

Accordingly, we presume the regularity of proceedings. See State v. Belknap, 11th Dist.

Portage No. 2002-P-0021, 2004-Ohio-5636, ¶18.

      {¶9}   In light of this presumption, Sheldon’s entry was not a final sentencing

judgment, but rather an unadopted magistrate’s decision. Because Sheldon’s decision

was not a final order, Atlas America, Inc. v. Fano, 11th Dist. Portage No. 2008-P-0093,

2008-Ohio-6561, ¶4, quoting Ingledue v. Premier Siding & Roofing, Inc., 5th Dist. No.

2005CAE120088, 2006-Ohio-2698, ¶11-12, Judge DiGiacomo’s judgment vacating and

overruling is interlocutory, not final and appealable. Fleenor v. Caudill, 4th Dist. Scioto

No. 03CA2886, 2003-Ohio-6513, ¶13.

      {¶10} Given the lack of a final appealable order, this court lacks jurisdiction to

address appellant’s arguments.

      {¶11} Appeal dismissed.



TIMOTHY P. CANNON, J.,

COLLEEN MARY O’TOOLE, J.,

concur.




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