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State v. Fikes

Court of Appeals of Ohio, First District, Hamilton

July 26, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
JOSHUA FIKES, Defendant-Appellant.

          Criminal Appeal From: Hamilton County Court of Common Pleas Trial Nos. B-0506290 B-0409872

          Joseph T. Deters, Hamilton County Prosecuting Attorney, and Judith Anton Lapp, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

          Joshua Fikes, pro se.

          OPINION

          PER CURIAM.

         {¶1} Defendant-appellant Joshua Fikes appeals the Hamilton County Common Pleas Court's judgments overruling his "Motion for Appointment of Counsel and Status Conference on Motion to Modify the Verdict" and "Motion[s] to Vacate Unlawfully Imposed Term of Postrelease Control." We lack jurisdiction to review the judgment overruling his "Motion for Appointment of Counsel and Status Conference on Motion to Modify the Verdict." We affirm in part the court's judgments overruling his "Motion[s] to Vacate Unlawfully Imposed Term of Postrelease Control," but remand for correction of postrelease control.

         {¶2} In 2006, Fikes was convicted in the case numbered B-0506290 upon jury verdicts finding him guilty of murder and having weapons under a disability and in the case numbered B-0409872 upon his no-contest plea to violating the community-control sanction imposed for his 2005 conviction for drug possession. Following a sentencing hearing on all three offenses, the trial court imposed consecutive prison terms of 18 months for the community-control violation, 18 years to life for murder and the accompanying firearm specification, and four years for the weapons charge. Fikes unsuccessfully challenged his convictions on direct appeal and in postconviction motions filed in 2009, 2012, 2015, and 2016. See State v. Fikes, 1st Dist. Hamilton No. C-160557 (Apr. 26, 2017); State v. Fikes, 1st Dist. Hamilton No. C-150538 (Mar. 24, 2017); State v. Fikes, 1st Dist. Hamilton No. C-090637 (June 23, 2010); State v. Fikes, 1st Dist. Hamilton No. C-060581, 2007-Ohio-5870.

         {¶3} In 2017, in the case numbered B-0506290 and in the case numbered B-0409872, Fikes filed with the common pleas court a "Motion to Vacate Unlawfully Imposed Term of Postrelease Control." And in the case numbered B-0506290, he filed a "Motion for Appointment of Counsel and Status Conference on Motion to Modify the Verdict." In this appeal from the overruling of those motions, Fikes presents four assignments of error.

         Motion for Appointment of Counsel and Status Conference on Motion to Modify the Verdict

         {¶4} We address first Fikes's fourth assignment of error, challenging the overruling of his "Motion for Appointment of Counsel and Status Conference on Motion to Modify the Verdict." We do not reach the merits of this assignment of error, because we have no jurisdiction to review the judgment overruling the motion.

         {¶5} Article IV, Section 3(B)(2) of the Ohio Constitution confers upon an intermediate appellate court only "such jurisdiction as may be provided by law to review and affirm, modify, or reverse judgments or final orders of the courts of record inferior to the court of appeals within the district." In 2015, in the case numbered B-0506290, Fikes filed a motion under the new-trial statute, R.C. 2945.79, seeking modification of his murder verdict to voluntary manslaughter. In his 2017 "Motion for Appointment of Counsel and Status Conference on Motion to Modify the Verdict," he sought an order from the common pleas court appointing counsel and setting a status conference for his 2015 motion. In this appeal, Fikes asks this court to reverse the common pleas court's entry overruling his 2017 motion. But no law confers upon us the jurisdiction to do so.

         {¶6} No jurisdiction under R.C. 2953.02 or 2953.08-not a judgment of conviction. The entry overruling Fikes's 2017 motion denies the relief sought in that motion: appointed counsel and a status hearing for his pending postconviction motion to modify his murder verdict. Thus, the entry is plainly not reviewable under our jurisdiction under R.C. 2953.02 or 2953.08 to review on direct appeal a judgment of conviction entered in a criminal case.

         {¶7} No jurisdiction under R.C. 2953.23(B)-not a judgment denying postconviction relief. Nor is the entry reviewable under the jurisdiction conferred by R.C. 2953.23(B) to review an order denying a petition under R.C. 2953.21 et seq. for postconviction relief. A common pleas court may review under the postconviction statutes a postconviction motion seeking relief from a criminal conviction based on a constitutional violation in the proceedings resulting in that conviction. See State v. Schlee, 117 Ohio St.3d 153, 2008-Ohio-545, 882 N.E.2d 431, ¶ 12 and syllabus. But Fikes's 2017 motion did not seek relief from his convictions based on an alleged a constitutional violation in the proceedings resulting in those convictions. Therefore, that motion was not reviewable by the common pleas court under the postconviction statutes. In turn, the entry overruling the motion is not reviewable under our jurisdiction to review the denial of postconviction relief.

         {¶8} No jurisdiction under R.C. 2505.03(A)-not an R.C. 2505.02 "final order." Finally, an appeals court has jurisdiction under R.C. 2505.03(A) to review and affirm, modify, or reverse a "final order, judgment or decree" as defined by R.C. 2505.02. But the common pleas court's entry overruling Fikes's 2017 motion for appointed counsel and a status hearing on his 2015 motion did not, for purposes of the grant of jurisdiction under R.C. 2505.03(A), constitute a "final order."

         {¶9} R.C. 2505.02 defines a "final order" to include an order that "affects a substantial right" in "an action," when that order either "in effect determines the action and prevents a judgment" or is "made in a special proceeding." R.C. 2505.02(B)(1) and (B)(2). A "substantial right" is "a right that the United States Constitution, the Ohio Constitution, a statute, the common law, or a rule of procedure entitles a person to enforce or protect." R.C. 2505.02(A)(1). We conclude that the common pleas court's entry ...


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