In re C.C., 2008 Ohio 2803 (Ohio App. 6/10/2008)

• Decision Date: 10 June 2008
• Docket Number: No. 07AP-993.,07AP-993.
• Parties: In the Matter of: C.C., (Appellant).
• Court: Ohio Court of Appeals

Page 1

2008 Ohio 2803

In the Matter of: C.C., (Appellant).

No. 07AP-993.

Court of Appeals of Ohio, Tenth District, Franklin County.

Rendered on June 10, 2008.

APPEAL from the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, C.P.C. No. 07JU-09-13026.

Ron O'Brien, Prosecuting Attorney, and Katherine J. Press, for appellee State of Ohio.

Yeura R. Venters, Public Defender, Paul Skendelas and David L. Strait, for appellant.

OPINION

PETREE, J.

{¶1} Appellant, C.C., appeals from a judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, adjudging him a delinquent minor.¹ Because the juvenile court's adjudging appellant a delinquent minor as to one offense (offense 1) is not plain error, we affirm in part the juvenile court's judgment. However, because the juvenile court's judgment as to the remaining offenses (offenses 2 and 3) fails to constitute a final order, we dismiss the appeal as to these two offenses.

{¶2} By a delinquency complaint filed on September 4, 2007, Anthony Cupp, the complainant, asserted that C.C. committed two theft offenses and one offense of attempted theft. In offense 1 of the complaint, Mr. Cupp alleged that on or about August 31, 2007, C.C. committed theft by knowingly exerting control of Mr. Cupp's 1998 Chevy work van without Mr. Cupp's consent, in violation of R.C. 2913.02, a felony of the fourth degree. In offense 2, Mr. Cupp alleged that on or about August 31, 2007, C.C. committed theft by knowingly exerting control of $6,000 from Mr. Cupp without consent, in violation of R.C. 2913.02, a felony of the fourth degree. And, in offense 3, Mr. Cupp alleged that, on or about August 31, 2007, C.C. committed the offense of attempted theft by punching and peeling the steering column of Mr. Cupp's Cadillac and damaging the car's dashboard, in violation of R.C. 2913.02, a felony of the fifth degree.²

{¶3} After the delinquency complaint was filed, a warrant for the arrest of C.C. was issued. Following C.C.'s arrest, a magistrate ordered him to be held in detention because the magistrate found that he was at risk to abscond and, because the magistrate also found that his parents were unwilling, or unable, to provide supervision of him.

{¶4} After a bench trial, a magistrate adjudged appellant a delinquent minor by proof beyond a reasonable doubt as to all charges in the delinquency complaint. With regard to offense 1, the magistrate committed appellant to the legal custody of the Ohio Department of Youth Services for an indefinite term of institutionalization in a secure facility for a minimum period of six months and a maximum period not to exceed C.C.'s attainment of 21 years of age. The magistrate further ordered C.C. to pay $300 in restitution by completing 60 hours of community service within six months after his release on parole. As to offenses 2 and 3, the magistrate held these matters "open until parole is complete."

{¶5} Finding no error of law or other defect on the face of the magistrate's decision, the juvenile court approved the magistrate's decision and adopted it as its own on the same day that the magistrate issued her decision. Appellant did not file objections to the magistrate's decision.

{¶6} From the juvenile court's judgment, C.C. now appeals. Appellant assigns a single error for our consideration:

There was insufficient evidence to support Appellant's delinquency adjudications and the verdicts were against the manifest weight of the evidence.

{¶7} At the outset, we sua sponte consider whether subject-matter jurisdiction of this appeal properly lies. See Mogavero v. Lombardo (Sept. 25, 2001), Franklin App. No. 01AP-98, citing State ex rel. White v. Cuyahoga Metro. Hous. Auth. (1997), 79 Ohio St.3d 543, 544 (observing that whether subject-matter jurisdiction properly lies may be raised sua sponte by an appellate court).

{¶8} "Appellate courts have jurisdiction to review the final orders or judgments of lower courts within their appellate districts." Mogavero, supra, citing Section 3(B)(2), Article IV, Ohio Constitution; see, also, Gehm v. Timberline Post & Frame, 112 Ohio St.3d 514, 2007-Ohio-607, at ¶13. Absent a final order, an appellate court has no jurisdiction to review a matter, General Acc. Ins. Co. v. Ins. Co. of N. Am. (1989), 44 Ohio St.3d 17, 20, and such a matter must be dismissed. Renner's Welding and Fabrication, Inc. v. Chrysler Motor Corp. (1996), 117 Ohio App.3d 61, 64; Mogavero, supra; McClary v. M/I Schottenstein Homes, Inc., Franklin App. No. 03AP-777, 2004-Ohio-7047, at ¶15; Elkins v. Access-Able, Inc., Franklin App. No. 04AP-101, 2004-Ohio-4101, at ¶15.

{¶9} "Generally, the question of whether an order is final and appealable turns on the effect which the order has on the pending action rather than the name attached to it, or its general nature." In re Murray (1990), 52 Ohio St.3d 155, 157, citing Harvey v. Cincinnati Civil Serv. Comm. (1985), 27 Ohio App.3d 304, 305; Systems Construction, Inc. v. Worthington Forest, Ltd. (1975), 46 Ohio App.2d 95, 96. "It is rudimentary that a finding of delinquency by a juvenile court, unaccompanied by any disposition thereof, is not a final appealable order." In re Sekulich (1981), 65 Ohio St.2d 13, 14, citing In re Whittington (1969), 17 Ohio App.2d 164; In re Bolden (1973), 37 Ohio App.2d 7; see, also, In the Matter of Short (Oct. 30, 1981), Lawrence App. No. 1568.

{¶10} Here, although the magistrate adjudged appellant as a delinquent minor as to all three offenses that were charged against him, the magistrate held "open until parole is complete" the case as to offenses 2 and 3. By "hold[ing] these matters open until parole is complete" as to offenses 2 and 3, the magistrate contemplated further action, thereby leaving issues unresolved. See State ex rel. Keith v. McMonagle,103 Ohio St.3d 430, 2004-Ohio-5580, at ¶4, quoting Bell v. Horton (2001), 142 Ohio App.3d 694, 696, 75; Chef Italiano Corp. v. Kent State Univ. (1989), 44 Ohio St.3d 86, 89 (stating that " `[a] judgment that leaves issues unresolved and contemplates that further action must be taken is not a final appealable order' "). By leaving issues unresolved, the magistrate in essence rendered a decision that was interlocutory in character. See Wohala v. Goss (May 23, 1985), Cuyahoga App. No. 49164, fn. 1, quoting Black's Law Dictionary (5 Ed.Rev. 1979) (stating that "[t]he term `interlocutory' is defined * * * as follows: `Provisional; interim; temporary; not final. Something intervening between the commencement and the end of a suit which decides some point or matter, but is not a final decision of the whole controversy' ").

{¶11} Moreover, by holding "open" the case as to offenses 2 and 3, the magistrate in essence rendered no disposition concerning these offenses as she failed to inform appellant of any consequences, obligations, or duties resulting from the delinquency findings as to offenses 2 and 3. See In re Zakov (1995), 107 Ohio App.3d 716, 718 (finding that notation of "restitution to be determined" renders an entry interlocutory because the appellant was not aware of his duties and obligations).

{¶12} Because, as to offenses 2 and 3, the magistrate contemplated further action and in essence rendered no disposition concerning these offenses, thereby in effect failing to determine the action as to these offenses; and because the juvenile court adopted the magistrate's decision without any modification, we find that no final order as to these offenses is presently before this court. See, generally, R.C. 2505.02(B) (providing, in part, that "[a]n order is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial, when it is one of the following: (1) [a]n order that affects a substantial right in an action that in effect determines the action and prevents a judgment[.]");³ see, also, Keith, at ¶4.

{¶13} Furthermore, because, as to offenses 2 and 3, no final order is presently before this court, this court therefore lacks jurisdiction to review defendant's claims of error as to these two offenses. See General Acc. Ins. Co., at 20. We therefore must dismiss in part the appeal as to these two offenses. See Renner's Welding and Fabrication, Inc., at 64; see, also, Elkins, at ¶15; Mogavero, supra; McClary, at ¶15.

{¶14} However, as to offense 1, we find that the juvenile court's judgment is a final appealable order. Here, as to offense 1, besides adjudging appellant a delinquent minor, the juvenile court committed appellant to the custody of Ohio Department of Youth Services for an indefinite term of institutionalization and further ordered C.C. to pay $300 in restitution after his release on parole. Thus, as to offense 1, the juvenile court rendered an adjudication that was accompanied by a disposition. Because "whether an order is final and appealable turns on the effect which the order has on the pending action rather than the name attached to it, or its general nature," In re Murray, at 157, we find that, as to offense 1, the result of the juvenile court's delinquency finding and disposition is an order that affects a substantial right in an action that in effect determines the action as to offense 1. See, generally, R.C. 2505.02(A)(1) and 2505.02(B); see, also, In re Adams, 115 Ohio St.3d 86, 2007-Ohio-4840, at ¶44, citing Wenzel v. Enright (1993), 68 Ohio St.3d 63, 67 (Sweeney, J., dissenting), quoting Bell v. Mt. Sinai Med. Ctr. (1993), 67 Ohio St.3d 60, 63, modified in part on other grounds by, Moskovitz v. Mt. Sinai Med. Ctr. (1994), 69 Ohio St.3d 638, paragraph four of the syllabus (stating that " ` "[a]n order which affects a substantial right has been perceived to be one which, if not immediately appealable, would foreclose appropriate relief in the future." ' "); Legg v. Fuchs (2000), 140 Ohio App.3d 223, 226, citing Bell, at 63 (stating that "[a]n order affects a substantial right if in the absence...