[Cite as State v. Smith, 2011-Ohio-1659.]

 IN THE COURT OF APPEALS OF OHIO 

 FOURTH APPELLATE DISTRICT 

 HIGHLAND COUNTY 

STATE OF OHIO, : 

Plaintiff-Appellee, : Case No. 10CA13 

vs. : 

NICHOLAS A. SMITH, : DECISION AND JUDGMENT ENTRY 

 

 

Defendant-Appellant. : 

________________________________________________________________ 

 APPEARANCES: 

COUNSEL FOR APPELLANT: Jacob D. Wagoner, 212 North High Street, Hillsboro, Ohio 

45133 

COUNSEL FOR APPELLEE: James B. Grandey, Highland County Prosecuting Attorney, 

112 Governor Foraker Place, Hillsboro, Ohio 45133 

_________________________________________________________________ 

CRIMINAL APPEAL FROM COMMON PLEAS COURT 

DATE JOURNALIZED: 3-23-11 

ABELE, J. 

{¶ 1} This is an appeal from a Highland County Common Pleas Court judgment of 

conviction and sentence. The trial court found Nicholas A. Smith, defendant below and appellee 

herein, guilty of unlawful sexual contact with a minor, in violation of R.C. 2907.04, and 

sentenced him to serve three years in prison. Appellant's counsel has advised this court that he 

has reviewed the record and can discern no meritorious claim to appeal. Pursuant to Anders v. 
HIGHLAND, 10CA13 2

California (1967), 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493,1

 counsel thus requests to 

withdraw from the case. Appellant’s counsel has suggested, however, that an appeal may 

arguably exist on the basis that appellant received ineffective assistance of counsel. However, 

our review of the record reveals that we lack a final, appealable order and we therefore do not 

reach an Anders review. Instead, we must dismiss this appeal. 

I. FACTS 

{¶ 2} On May 4, 2010, the Highland County Grand Jury returned an indictment that 

charged appellant with sexual battery, in violation of R.C. 2907.03(A)(5). On July 23, 2010, the 

appellee filed a bill of information, in the same case, that charged appellant with unlawful sexual 

contact with a minor in violation of R.C. 2907.04(A). On July 23, 2010, appellant pled guilty to 

unlawful sexual contact with a minor. On September 8, 2010, the trial court sentenced appellant 

to serve three years in prison. This appeal followed. 

II. FINAL, APPEALABLE ORDER IN CRIMINAL CASES 

{¶ 3} A court of appeals has no jurisdiction over orders that are not final and 

appealable. Section 3(B)(2), Article IV, Ohio Constitution (“Courts of appeals shall have such 

jurisdiction as may be provided by law to review and affirm, modify, or reverse judgments or 

 1

 In Anders, the United States Supreme Court held that if counsel determines, after a thorough and conscientious 

examination of the record, that the case is wholly frivolous, counsel should so advise the court and request permission to 

withdraw. Id. At 744. Furthermore, counsel must accompany the request with a brief that identifies anything in the record 

that could arguably support the appeal. Id. Counsel must also provide appellant with a copy of the brief and allow him 

sufficient time to raise any matters that he so chooses. Id. Once these requirements have been satisfied, the appellate 

court must fully examine the trial court proceedings to determine if meritorious issues exist. Id. If the appellate court 

determines that the appeal is frivolous, it may grant counsel’s request to withdraw and dismiss the appeal without violating 

constitutional requirements. Id. If, however, the court finds the existence of meritorious issues, it must afford the 

appellant assistance of counsel before deciding the merits of the case. Id.
HIGHLAND, 10CA13 3

final orders of the courts of record inferior to the court of appeals within the district * * * ”); see, 

also, R.C. 2953.02. We are required to sua sponte raise jurisdictional issues when they become 

apparent. See, e.g., In re B.J.G., Adams App. No. 10CA894, 2010-Ohio-5195, at ¶6. 

{¶ 4} In order for a judgment of conviction to qualify as a final appealable order, a trial 

court must comply with Crim.R. 32(C), which states: “A judgment of conviction shall set forth 

the plea, the verdict or findings, and the sentence. If the defendant is found not guilty or for any 

other reason is entitled to be discharged, the court shall render judgment accordingly. The judge 

shall sign the judgment and the clerk shall enter it on the journal. A judgment is effective only 

when entered on the journal by the clerk.” The Ohio Supreme Court has interpreted this rule to 

mean that a “judgment of conviction is a final appealable order under R.C. 2505.02 when it sets 

forth (1) the guilty plea, the jury verdict, or the finding of the court upon which the conviction is 

based; (2) the sentence; (3) the signature of the judge; and (4) entry on the journal by the clerk of 

court.” State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163, syllabus; see, 

also, State ex rel. DeWine v. Burge, — Ohio St.3d —, — N.E.2d —, 2011-Ohio-235, at ¶8. 

{¶ 5} Ohio courts have further interpreted these requirements as imposing “‘a 

mandatory duty [on the trial court] to deal with each and every charge prosecuted against a 

defendant,’” and have stated that “‘[t]he failure of a trial court to comply renders the judgment of 

the trial court substantively deficient under Crim.R. 32[(C)].’” State v. Geisler, Athens App. 

No. 07CA35, 2008-Ohio-4836, at ¶13, quoting State v. Brooks (May 16, 1991), Cuyahoga App. 

No. 58548, citing State v. Brown (1989), 59 Ohio App.3d 1, 2, 569 N.E.2d 1068; see, also, In re 

B.J.G., supra; State v. Fox, Highland App. No. 04CA15, 2005-Ohio-792. Therefore, if a trial 

court fails to issue an entry that disposes of each prosecuted charge, the court’s order constitutes 
HIGHLAND, 10CA13 4

an interlocutory order that is not subject to appellate review. See Geisler; State v. Lupardus, 

Washington App. No. 07CA46, 2008-Ohio-2660; State v. Johnson, Scioto App. No. 06CA3066, 

2007-Ohio-1003; State v. Fox, Highland App. No. 04CA15, 2005-Ohio-792; see, also, Cleveland 

v. Duckworth (Jan. 24, 2002), Cuyahoga App. No. 79658 (stating that trial court must dispose of 

all charges in order for judgment to be final, appealable order). 

{¶ 6} In the case at bar, the appellee instituted this case by filing an indictment that 

charged appellant with sexual battery, in violation of R.C. 2907.03(A)(5). The appellee later 

filed a bill of information that charged appellant with unlawful sexual contact with a minor, in 

violation of R.C. 2907.04(A). The bill of information appears in the same case as the sexual 

battery indictment and appellant subsequently entered a guilty plea to the bill of information. 

However, it does not appear that the court disposed of the sexual battery charge set forth in the 

indictment. Thus, that indictment remains pending and deprives us of jurisdiction to hear this 

appeal. See, e.g., State v. Kuhn Montgomery App. No. 20912, 2005-Ohio-6836, (the defendant 

pled to bill of information after the prosecution nolled the indictment). Accordingly, based 

upon the foregoing reasons, we hereby dismiss this appeal. 

APPEAL DISMISSED. 

 JUDGMENT ENTRY 

It is ordered that the appeal be dismissed and that appellee recover of appellant costs 

herein taxed. 

The Court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this Court directing the Highland County 
HIGHLAND, 10CA13 5

Common Pleas Court to carry this judgment into execution. 

A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the 

Rules of Appellate Procedure. 

Harsha, P.J. & McFarland, J.: Concur in Judgment & Opinion 

For the Court 

BY: 

 Peter B. Abele, Judge 

 

 

 NOTICE TO COUNSEL 

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the 

time period for further appeal commences from the date of filing with the clerk.