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State v. Saunders

Court of Appeals of Ohio, Fourth District, Scioto

March 22, 2018

STATE OF OHIO, Plaintiff-Appellee,
v.
JEROME SAUNDERS, Defendant-Appellant.

          Jerome Saunders, Nelsonville, Ohio, Pro Se Appellant.

          Mark E. Kuhn, Scioto County Prosecuting Attorney, Portsmouth, Ohio, for Appellee.

          DECISION AND JUDGMENT ENTRY

          Matthew W. McFarland, Judge.

         {¶1} Jerome Saunders purports to appeal his convictions and sentences for possession of cocaine and tampering with evidence, after a prior dismissal of his initial direct appeal for lack of a final appealable order. However, the judgment entries from which Appellant actually appeals, which are attached to his notice of appeal, consist of 1) a judgment entry clarifying that a dismissal entry had previously been filed dismissing the unresolved counts of the indictment; and 2) a judgment entry denying Appellant's motion to withdraw his plea. On appeal, Appellant contends that there was no reasonable, articulable suspicion to stop his vehicle and therefore the trial court's decision to overrule his motion to suppress was contrary to law. Because Appellant filed his notice of appeal outside the time frame specified in App.R. 4(A) and further failed to appeal from the correct judgment entry, we lack jurisdiction to consider the portion of the appeal which challenges Appellant's convictions and the denial of his motion to suppress. Thus, this portion of the appeal is dismissed. Further, although Appellant also appeals from the denial of his motion to withdraw his pleas, he makes no argument on appeal related to the denial of this motion. Thus, this portion of the appeal is overruled and the decision of the trial court denying Appellant's motion to withdraw his guilty plea is affirmed. Accordingly, Appellant's appeal is dismissed in part and affirmed in part.

         FACTS

         {¶2} As set forth in our previous review of this matter, on September 16, 2014, Appellant was indicted in Scioto County, Ohio, for one count of trafficking in cocaine, a felony of the first degree in violation of R.C. 2925.03(A)(2) and (C)(4)(f), one count of possession of cocaine, a felony of the first degree in violation of R.C. 2925.11(A) and (C)(4)(e), and one count of tampering with evidence, a felony of the third degree in violation of R.C. 2921.12(A)(1) and (B). The trial court found Appellant guilty on counts two and three and sentenced him to agreed consecutive sentences totaling seven years by judgment entry dated December 9, 2015. Upon review during Appellant's first appeal of this matter, we determined that the record before us was devoid of any disposition as to count one (trafficking in cocaine), and thus the count remained pending. State v. Saunders, 4th Dist. Scioto Nos. 16CA3728 and 16CA3729, 2017-Ohio-901, ¶ 6. Accordingly, we held that the order appealed from was not final and appealable, that we lacked jurisdiction to review it, and dismissed it on March 13, 2017. Id.

         {¶3} Thereafter, on March 16, 2017, a "Notice of Dismissal Count 1 of the Indictment Only" was filed by the State and signed by the trial court judge. The Notice provided as follows:

"This day came the Prosecuting Attorney, on behalf of the State of Ohio, pursuant to Rule 48(A), Ohio Rules of Criminal Procedure, and in open court, for good cause shown, with leave of Court, and entered a dismissal without prejudice in the above captioned case as to Count 1 of the Indictment, Title: Trafficking in Drugs/Cocaine, Section 2925.03(A)(2)&(C)(4)(F), a felony of the first degree."

         Nothing else was filed in the case below until April 28, 2017, when Appellant filed a pleading entitled "Motion to Withdraw Guilty Plea On Remand for Sentencing To Comply With Findings Of The Fourth Appellate District." Appellant also filed "Defendant's Submission of Law Prior to Resentencing" the same day. Thereafter, on June 7, 2017, Appellant filed another pleading entitled "Motion to Clarify the Position Of The Court On Remand By The Appellate Court[.]"

         {¶4} In response to the foregoing, the trial court issued two judgment entries on June 26, 2017. The first judgment entry was in response to Appellant's motion to clarify and stated as follows, in pertinent part:

"The Court finds that a dismissal entry was filed to dismiss the unresolved counts of the Indictment. This Court believes this dismissal is in compliance with the directions of the Fourth District Court of Appeals."

         The second judgment entry denied Appellant's motion to withdraw his plea. It is from these two judgment entries filed on June 26, 2017 that Appellant now brings his appeal, setting forth one assignment of error for our review.

         ASSIGNMENT OF ERROR

         "I. THERE WAS NO REASONABLE ARTICULABLE SUSPICION TO STOP APPELLANT'S VEHICLE AND THEREFORE THE TRIAL COURT'S DECISION TO OVERRULE APPELLANT'S ...


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