[Cite as State v. Hostacky , 2015-Ohio-419.] 

# Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 101282

STATE OF OHIO

PLAINTIFF-APPELLEE

vs. DENNIS J. HOSTACKY

DEFENDANT-APPELLANT

JUDGMENT:

DISMISSED

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-12-567826-A

BEFORE: Keough, J., Jones, P.J., and E.T. Gallagher, J.

RELEASED AND JOURNALIZED: February 5, 2015ATTORNEYS FOR APPELLANT

Robert L. Tobik Cuyahoga County Public Defender By: Jeffrey Gamso Assistant Public Defender 310 Lakeside Avenue, Suite 200 Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE Timothy J. McGinty Cuyahoga County Prosecutor By: Mary McGrath Assistant Prosecuting Attorney The Justice Center, 8th Floor 1200 Ontario Street Cleveland, Ohio 44113KATHLEEN ANN KEOUGH, J.: {¶1} Defendant-appellant, De nnis J. Hostacky, appeals the trial court’s decision denying his petition for postconviction relief. For the reasons that follow, we dismi ss the appeal for lack of a final, appealable order. {¶2} In May 2013 and following a bifurcated jury and bench trial, Hostacky was convicted of kidnapping, aggravated robbery, thef t, carrying concealed weapons, having weapons while under disability, and one- and three-year firearm specificati ons. A total prison term of eight years was imposed. {¶3} Hostacky filed a direct appeal with this court raising four assignments of error, including one for ineffectiv e assistance of counsel. State v. Hostacky , 8th Dist. Cuyahoga No. 100003, 2014-Ohio-2975 {¶4} While his direct appeal was pending, Hostacky filed a timely petition for postconviction relief conte nding that his trial counsel was in effective for failing to (1) conduct a reasonable and timely inve stigation, (2) call a necessary and av ailable witness of whom he was aware and who was available and willing to testify, and (3) repeatedly and consistently failing to object to highly improper and prejudicial testimony and argument. Attached to his petition were affidavits by his ex-wife, Christy Ho stacky, and his aunt, Sandra Hostacky. {¶5} The trial court summarily dismissed Hostacky’s petition without conducting a hearing or issuing findings of fact and conclusions of law. {¶6} Thereafter, this court affirmed Hostacky’s convictions and senten ce in part, reversed in part, and remanded the case to the trial court for the limited purpose of merging the two weapons while under disability counts for sentencing. Hostacky at ¶ 1.{¶7} Hostacky appeals from the trial court’s decision summarily denying his petition for postconviction relief, asse rting the following assignment of error:

The trial court committed error when it denied the petition for post conviction relief without holding a hearing as th e petition was based on evidence dehors the record, which if believed, was sufficient to demonstr ate that trial counsel’s performance was objectively de ficient, that the defi ciencies undermined the confidence in the verdict, and that but for the deficient performance there is a reasonable probability that there would have been a different outcome at trial, that Mr. Hostacky was accordingly denied his constitutionally protected right to the effective assistance of counsel, and that his conviction was therefore void or

voidable. {¶8} The sole issue raised and identified by Hostacky is whether the trial court erred in failing to conduct a hearing on his petition. Howe ver, because the trial court did not issue findings of fact and conclusions of law, we dis miss the appeal because the trial court’s journal entry does not constitute a final, appealable order. {¶9} R.C. 2953.21(C) clearly provides that if th e court dismisses or denies a timely petition for postconviction relief, th e trial court shall issue finding s of fact and conclusions of

law. In State v. Mapson , 1 Ohio St.3d 217, 219, 438 N.E.2d 910 (1982), the Ohio Supreme

Court held that because of th e mandates of R.C. 2953.21, “a judgme nt entry filed without such findings is incomplete and it thus does not comme nce the running of the time period for filing an appeal therefrom.” The court stated: * * * The obvious reasons for requiring findings are “* * * to apprise petitioner of the grounds for the judgment of the trial court and to enable theappellate courts to pr operly determine appeals in such a cause.” Jones v. State (1966), 8 Ohio St.2d 21, 22 [37 O.O. 2d 357]. The exercise of findings and

conclusions are essential in order to prosecute an appeal. Without them, a petitioner knows no more than [that] he lo st and hence is effectively precluded from making a reasoned appeal. In additi on, the failure of a trial judge to make the requisite findings prevents any mean ingful judicial review, for it is the findings and the conclusions which an appellate court reviews for error.

Id. at 219. The court recognized that the findings are “a necessary and essential part of a judgment denying pos tconviction relief.” Id

. A holding to the contrary would not only defeat the purposes of R.C. 2953.21, it would also serve to increase the workload of the already over-burdened and overcrowded courts of appeal and furthe r tax the already scarce state resources. Requiring a petitioner to perfect an app eal without having findings before him would deter judicial economy, for it woul d guarantee two trips to the appellate court — one to force the findings and anothe r to review the decision on the merits.

Id

. See also State ex rel. Ferrell v. Clark , 13 Ohio St.3d 3, 469 N.E.2d 843 (1984) {¶10} Relying on Mapson , this court has previously held that a judgment entry denying or dismissing a timely petition for pos tconviction relief that does not contain findings of fact or

conclusions of law is not a final, appealable order. See State v. Spencer , 8th Dist. Cuyahoga No. 81035, 2003-Ohio-287, State v. Loper , 8th Dist. Cuyahoga Nos. 81297, 81400, 81878, 2003-Ohio-3213, In re W.H. , 8th Dist. Cuyahoga No. 94160, 2010-Ohio-2898. {¶11} In this case, Hostacky’s petition was timely filed. The trial court summarily denied the petition without preparing findings of f act or conclusions of law as required pursuant to R.C. 2953.21(C). Accordingly, th e trial court’s j ournal entry is not a fina l, appealable order, and we lack jurisdiction to consider the appeal.{¶12} Dismissed. It is ordered that the parties shar e equally in the costs herein taxed.

The court finds there were reas onable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

KATHLEEN ANN KEOUGH, JUDGE LARRY A. JONES, SR., P.J., and EILEEN T. GALLAGHER, J., CONCUR