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State v. Ogle

Court of Appeals of Ohio, Fourth District, Hocking

March 6, 2017

State of Ohio, Plaintiff-Appellee,
Melanie A. Ogle, Defendant-Appellant.


          William H. Harsha Administrative Judge

         {¶1} Appellant Melanie A. Ogle appealed an order terminating a prior probation/community control order, discharging her from probation/community control, and restoring her to all civil rights unless otherwise prohibited by law. (Hocking County Court of Common Pleas Case No. 09CR0125, Order of Court, Oct. 5, 2016) The state filed a motion to dismiss arguing that the order is not a final appealable order. Ogle opposed the motion, arguing that the order was an implicit denial of her pending postconviction relief petition. We dismiss Ogle's appeal because the order appealed from is not a final appealable order. Moreover, we have previously held that Ogle has waived her right to appeal her community control sanction. We GRANT the state's motion and DISMISS this appeal because the entry appealed from is not a final, appealable order.

         I. Procedural History

         {¶2} In September 2011, Ogle was sentenced to three years of community control as part of her sentence on felony assault conviction. Later, due to damage she inflicted on an ankle monitor, the trial court found her guilty of criminal damaging and, as part of a plea bargain, sentenced her to thirty (30) days in jail, all suspended. She was also placed on non-reporting probation for eighteen (18) months, ordered to make restitution of $1, 300.00, and ordered to pay court costs. Ogle also agreed to a two-year extension of her prior three-year community control sanction stemming from her assault conviction. As a result, Ogle's community control, which started in September 2011 had a total five-year term expiring in September 2016. Ogle appealed and we affirmed the trial court's judgment. State v. Ogle, 4th Dist. Hocking Nos. 11CA29, 11CA32, 12CA2, 12CA11, 12CA12, 12CA19, 2013-Ohio-3420, ¶ 78-79, 82, 99, 104.

         {¶3} We held that the two-year extension of community control was part of a plea bargain and was not subject to review under R.C. 2953.08(D):

Community control was imposed as part of Appellant's sentence for felony assault. It was imposed pursuant to plea negotiations which also resolved a misdemeanor charge. Community control as part of a felony sentence may not exceed five years. R.C. 2929.15(A)(1). Similarly, community control as part of a misdemeanor sentence may not exceed five years. R.C. 2929.25(2). The record reflects this was an agreed sentence and our review indicates it is not contrary to law. We agree Appellant waived her right to appeal. As such, we affirm the judgment of the trial court and overrule this assignment of error.

Id. at ¶ 104. A comprehensive procedural history of this case and other related cases is set forth in the 2013 Ogle, supra, decision.

         {¶4} More recently, in September 2016, Ogle filed a postconviction relief petition challenging the September 2011 conviction and sentence. The state opposed the petition and, according to the court docket, the trial court had not yet ruled on Ogle's petition when she filed this appeal.

         {¶5} Also in September 2016, Ogle's extended community control sanction expired and the trial court entered an order terminating it that stated: "Considered and Ordered this 26 day of September, 2016 that the probation order entered on the 27 day of September, 2011 [and journalized on the 28th] pertaining to the above named probationer be terminated, that he/she be discharged from probation, and restored to all civil rights, unless otherwise prohibited by law."

         {¶6} Ogle appealed the trial court's order discharging her from community control.

         II. Legal Analysis

         {¶7} The trial court's entry terminating community control sanctions and discharging Ogle is not a final appealable order. Appellate courts in Ohio have jurisdiction to review the final orders or judgments of inferior courts within their district. Section 3(B)(2), Article IV of the Ohio Constitution; R.C. 2501.02. A final appealable order is one that affects a "substantial right" and either determines the action or is entered in a special proceeding. R.C. 2505.02(B)(1) & (2). If a judgment is not final and appealable, then an appellate court has no jurisdiction to review the matter and must dismiss the appeal. Production Credit Assn. v. Hedges, 87 Ohio App.3d 207, 210 at fn. 2 (4th Dist. 1993); Kouns v. Pemberton, 84 Ohio App.3d 499, 501 (4th Dist. 1992). "Special proceeding" means "an action or proceeding that is specially created by statute and that prior to 1853 was not denoted as an action at law or a suit in equity." R.C. 2505.02(A)(2).

         {¶8} Community control proceedings are created by statute and set forth in R.C. 2929.15. Like judicial release, community control proceedings are special proceedings. See State v. Dowler, 4th Dist. Athens No. 15CA7, 2015-Ohio-5027, ¶14-17 (discussing judicial release and its predecessor, shock probation). Thus, orders revoking community control and imposing a sentence are final appealable orders because the order is made in a special proceeding and affects a substantial right. See, generally, In re G.S., 4th Dist. Pike No. 14CA852, 2015-Ohio-1285, ¶14-15.

         {¶9} However, not all orders arising out of community control proceedings affect a substantial right. "An order affects a substantial right for the purposes of R.C. 2505.02(B)(2) only if an immediate appeal is necessary to protect the right effectively." Wilhelm-Kissinger v. Kissinger,129 Ohio St.3d 90, 2011-Ohio-2317, 950 N.E.2d 516, ΒΆ 7. Covered rights include any "right that the United States Constitution, the Ohio Constitution, a ...

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