[Cite as State v. Frye, 2013-Ohio-3307.]

IN THE COURT OF APPEALS OF OHIO 

FOURTH APPELLATE DISTRICT 

SCIOTO COUNTY 

STATE OF OHIO, : 

 : 

 Plaintiff-Appellee, : Case No. 12CA3499 

 : 

 vs. : 

 : DECISION AND JUDGMENT

TRACY A. FRYE, : ENTRY

 : 

 Defendant-Appellant. : Released: 07/22/13 

APPEARANCES: 

Bryan Scott Hicks, Lebanon, Ohio, for Appellant. 

Mark E. Kuhn, Prosecuting Attorney, and Pat Apel, Assistant Prosecuting 

Attorney, Portsmouth, Ohio, for Appellee. 

McFarland, P.J. 

{¶1} Tracy A. Frye appeals from his conviction and sentence 

imposed by the Scioto County Court of Common Pleas after he pled guilty 

to four felony drug trafficking offenses. On appeal, Appellant contends that 

the trial court improperly denied his presentence motion to withdraw his 

guilty pleas. Because the order appealed from is not a final, appealable 

order, we lack jurisdiction to consider the merits of Appellant’s assignment 

of error and therefore must dismiss the appeal. Accordingly, this matter is 

dismissed. 
Scioto App. No. 12CA3499 2

FACTS 

{¶2} On March 1, 2011, Appellant was indicted on twelve counts of 

drug possession and drug trafficking. More specifically, Appellant was 

indicted on six felony drug trafficking counts in violation of R.C. 2925.03, 

five felony drug possession counts in violation of R.C. 2925.11, and one 

misdemeanor drug possession count in violation of R.C. 2925.11. The 

indictment also included a forfeiture specification. Although 

Appellant initially pled not guilty to the charges contained in the indictment, 

on September 20, 2011, pursuant to a negotiated plea agreement with the 

State, Appellant entered guilty pleas to Counts 1, 3, 5, and 9 of the 

indictment. The matter was scheduled for a later sentencing hearing. 

{¶3} Prior to Appellant’s scheduled sentencing hearing, Appellant 

moved the trial court for withdrawal of his previously entered pleas. The 

trial court held a hearing on Appellant’s motion to withdraw his pleas on 

January 18, 2012, and by judgment entry dated May 7, 2012, the trial court 

denied Appellant’s motion. The matter proceeded to sentencing on May 31 

and June 6, 2012, and the trial court issued its judgment entry on July 5, 

2012. It is from this judgment entry that Appellant brings his appeal, setting 

forth a single assignment of error for our review.
Scioto App. No. 12CA3499 3

ASSIGNMENT OF ERROR 

“I. MR. FRYE WAS IMPROPERLY DENIED WITHDRAWAL OF HIS 

PLEA.” 

LEGAL ANALYSIS 

{¶4} In his sole assignment of error, Appellant contends that the trial 

court improperly denied his motion to withdraw his pleas. However, before 

we reach Appellant's assignment of error, we must first address a threshold 

jurisdictional issue. Ohio appellate courts have appellate jurisdiction over 

“final orders.” Section 3(B)(2), Article IV of the Ohio Constitution. If a 

judgment is not a final order, an appellate court has no jurisdiction to 

consider it and the appeal must be dismissed. State v. Carver, 4th Dist. No. 

10CA3377, 2012-Ohio-3479, ¶ 5; Davison v. Rini, 115 Ohio App. 3d 688, 

692, 686 N.E.2d 278 (4th Dist. 1996); Prod. Credit Assn. v. Hedges, 87 Ohio 

App.3d 207, 210, 621 N.E.2d 1360, FN.2 (4th Dist. 1993); Kouns v. 

Pemberton, 84 Ohio App.3d 499, 501, 617 N.E.2d 701 (4th Dist. 1992). 

Furthermore, even if the parties do not raise jurisdictional issues on appeal, 

an appellate court is required to raise them sua sponte. See In re Murray, 52 

Ohio St.3d 155, 159-160, 556 N.E.2d 1169, FN.2 (1990); Whitaker–Merrell 

v. Geupel Co., 29 Ohio St.2d 184, 186, 280 N.E.2d 922 (1972). 

{¶5} In the case sub judice, a jurisdictional problem exists in that 

eight counts of the twelve count indictment appear to remain pending. As set 
Scioto App. No. 12CA3499 4

forth above, Appellant was indicted on twelve different counts of drug 

possession and/or drug trafficking. Appellant pled guilty to four drug 

trafficking counts, specifically Counts 1, 3, 5, and 9. However there is 

nothing in the record to indicate that the eight remaining counts were ever 

dismissed or otherwise disposed of. When an indictment count remains 

unresolved and is still pending, there is no final order. In re B.J.G., 4th Dist. 

No. 10CA894, 2010-Ohio-5195, ¶ 7. Because our review of the record 

indicates that Counts 2, 4, 6, 7, 8, 10, 11 and 12 remain unresolved and are 

still pending, there is no final order and we must, therefore, dismiss the 

appeal for lack of jurisdiction. 

APPEAL DISMISSED. 
Scioto App. No. 12CA3499 5

JUDGMENT ENTRY

 It is ordered that the APPEAL BE DISMISSED and costs be assessed to 

Appellant. 

 The Court finds there were reasonable grounds for this appeal. 

 It is ordered that a special mandate issue out of this Court directing the Scioto 

County Common Pleas Court to carry this judgment into execution. 

 IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL 

HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it 

is temporarily continued for a period not to exceed sixty days upon the bail previously 

posted. The purpose of a continued stay is to allow Appellant to file with the Supreme 

Court of Ohio an application for a stay during the pendency of proceedings in that court. 

If a stay is continued by this entry, it will terminate at the earlier of the expiration of the 

sixty day period, or the failure of the Appellant to file a notice of appeal with the 

Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of 

the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court 

of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of 

the date of such dismissal. 

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

the Rules of Appellate Procedure. 

Exceptions. 

Harsha, J. & Hoover, J.: Concur in Judgment and Opinion. 

 

For the Court, 

 BY: _________________________ 

 Matthew W. McFarland 

Presiding 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.