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State v. Sowards

Court of Appeals of Ohio, Fourth District, Gallia

November 8, 2017

State of Ohio, Plaintiff-Appellee,
v.
William S. Sowards, Defendant-Appellant.

          Kerry M. Donahue, Dublin, Ohio for Defendant-Appellant.

          Jason D. Holdren, Gallia County Prosecuting Attorney and Jeremy Fisher, Gallia County Assistant Prosecuting Attorney, Gallia County, Ohio for Plaintiff-Appellee.

          DECISION AND JUDGMENT ENTRY

          MARIE HOOVER JUDGE.

         {¶1} Appellant William S. Sowards appeals a trial court order executing his sentence and ordering him to report to the Gallia County jail. As it appeared we may not have jurisdiction to consider this matter because it appeared that the order was not a final appealable order, we ordered appellant to file a memorandum addressing this jurisdictional issue. See Entry, September 13, 2017. In response appellant filed a memorandum in support of jurisdiction that contends that this is not "a typical or mill run case" because Sowards has not begun to serve his sentence. Therefore, he contends that he may request a modification of his sentence and the trial court has jurisdiction to make modifications. However, this is not an appeal from a post-conviction relief petition - it is an appeal from an order granting the state's motion to execute sentence.

         {¶2} The state contends that a criminal sentence is final upon the issuance of a final order and the trial court cannot modify the sentence even if the sentence had not yet been executed. The state contends that the order executing Sowards's sentence is not a final appealable order.

         {¶3} We find that the order executing Sowards's sentence is not a final appealable order under R.C. 2505.02(B)(1), (2) or (4). Thus, we dismiss the appeal.

         Procedural Background

         {¶4} In 2006 after a jury found Sowards guilty of marijuana possession, the trial court sentenced him to prison. Sowards appealed and was released on bond pending appeal. We affirmed appellant's conviction. See State v. Sowards, 4th Dist. Gallia App. No. 06CA13, 2007-Ohio-4863.

         {¶5} Sowards sought other forms of appellate and post-conviction relief in both state and federal courts. See State v. Sowards, 4th Dist. No. 09CA8, 2011-Ohio-1660; State v. Sowards, 116 Ohio St.3d 1508, 880 N.E.2d 484, 2008-Ohio-381; Sowards v. State, 555 U.S. 816, 129 S.Ct. 69, 172 L.Ed.2d 26 (2008); Sowards v. Atty. Gen. of Ohio, S.D.Ohio No. 2:11-CV-954, 2012 WL 4051238 (Sept. 13, 2012); State v. Sowards, 4th Dist. Gallia No. 06CA13, 2013-Ohio-3265. It appears from the trial court docket that Sowards remained released on bond pending numerous appellate filings in the state and federal courts.

         {¶6} In August 2017, the trial court granted the state's motion to execute sentence and ordered Sowards to report to jail:

Upon the motion of the State of Ohio, it is ORDERED that the Defendant immediately report to the Gallia County Jail by 8:00 am on Thursday, August 31, 2017 Should the Defendant fail to report to jail a warrant will issue. SO ORDERED. (Emphasis sic.)

         Entry, August 22, 2017. Sowards appeals this entry.

         Legal Analysis

         {¶7} Ohio law provides that appellate courts have jurisdiction to review only final orders or judgments. See, generally, Section 3(B)(2), Article IV, Ohio Constitution; R.C. 2505 .02. If an order is not final and appealable, an appellate court has no jurisdiction to review the matter and it must be dismissed. "An order of a court is a final appealable order only if the requirements of both R.C. 2505.02 and, if applicable, Civ.R. 54(B), are met." State ex rel. Scruggs v. Sadler, 97 Ohio St.3d 78, 2002-Ohio-5315, 776 N.E.2d 101; see also, Chef Italiano Corp. v. Kent State Univ. ...


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