Court of Appeals of Ohio, Fourth District, Hocking
DECISION AND JUDGMENT ENTRY
William H. Harsha Administrative Judge
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,
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,
We held that the two-year extension of community control was
part of a plea bargain and was not subject to review under
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.
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.
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
Ogle appealed the trial court's order discharging her
from community control.
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).
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.
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, ¶ 7. Covered rights include any "right that
the United States Constitution, the Ohio Constitution, a