[Cite as State v. Poulton, 2016-Ohio-901.]


                                        COURT OF APPEALS
                                    MUSKINGUM COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                     JUDGES:
                                                  Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                        Hon. William B. Hoffman, J.
                                                  Hon. Craig R. Baldwin, J.
-vs-
                                                  Case No. CT2015-0041
ADAM C. POULTON

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Muskingum County Court
                                               of Common Pleas, Case No. CR2013-0011


JUDGMENT:                                      Dismissed


DATE OF JUDGMENT ENTRY:                        March 7, 2016


APPEARANCES:


For Plaintiff-Appellee                         For Defendant-Appellant


D. MICHAEL HADDOX                              ADAM C. POULTON
Prosecuting Attorney                           A 686-056
Muskingum County, Ohio                         Ross Correctional Institution
                                               PO Box 7010
By: GERALD V. ANDERSON II                      Chillicothe, Ohio 45601
Assistant Prosecuting Attorney
Muskingum County, Ohio
27 North Fifth St., PO Box 189
Zanesville, Ohio 43702-0189
Muskingum County, Case No. CT2015-0041                                                       2

Hoffman, J.


       {¶1}   Defendant-appellant Adam C. Poulton appeals the July 9, 2015 Judgment

Entry entered by the Muskingum County Court of Common Pleas denying his petition for

post-conviction relief filed pursuant to R.C. 2953.21. Plaintiff-appellee is the state of Ohio.

                            STATEMENT OF THE FACTS AND CASE

       {¶2}   On January 10, 2013, Dresden Police Officer Scott Caldwell was on routine

patrol when he observed an African–American male, later identified as Jeffrey Body, enter

a residence at 801 Canal Street, an area known for illegal drug activity. Officer Caldwell

also noticed a Cadillac automobile moving through the area. A few minutes later, he

returned to the area and saw a number of people in the middle of the street. Officer

Caldwell then saw Body, with blood on his person, running away from the group of people.

The officer radioed the Muskingum County Sheriff's Office for assistance. Body thereafter

told investigators he had been jumped and robbed by three or four males. During the

altercation, Body suffered several broken bones to his face and was robbed of his wallet

and automobile.

       {¶3}   On January 16, 2013, the Muskingum County Grand Jury indicted Appellant

on the following charges: 1) Aggravated Robbery with a firearm specification and repeat

violent offender specification, a felony of the first degree, R.C. 2911.01(A)(1), 2941.145,

and 2941.149; 2) Aggravated Robbery with a firearm specification and repeat violent

offender specification, a felony of the first degree, R.C. 2911.01(A)(3), 2941.145, and

2941.149; 3) Felonious Assault with a firearm specification and repeat violent offender

specification, a felony of the second degree, R.C. 2903.11(A)(1), 2941.145, and

2941.149; 4) Theft (motor vehicle), a felony of the fourth degree, R.C. 2913.02(A)(1); 5)
Muskingum County, Case No. CT2015-0041                                                   3


Having a Weapon While Under Disability, a felony of the third degree, R.C. 2923.13(A)(2);

6) Having a Weapon While Under Disability, a felony of the third degree, R.C.

2923.13(A)(3); 7) Theft ($1,000–$7,500), a felony of the fifth degree, R.C. 2913.02(A)(1).

       {¶4}   Appellant appeared with his attorney for arraignment on January 23, 2013,

at which time he entered pleas of not guilty to the aforesaid counts.

       {¶5}   On March 26, 2013, Appellant's trial attorney filed a written motion to

withdraw as counsel. The trial court denied said motion via Judgment Entry.

       {¶6}   The case proceeded to a jury trial on May 30, 2013. Following the

presentation of evidence, the jury returned a verdict of guilty on all charges and

specifications.

       {¶7}   At sentencing, the trial court found the following counts would merge:

Counts One, Two, and Three; Counts Four and Seven; Counts Five and Six; all firearm

specifications; and all repeat violent offender specifications. The court also found Counts

One and Two would merge with Counts Four and Seven. The trial court thereupon

sentenced Appellant to an aggregate prison term of sixteen years.

       {¶8}   On direct appeal, this Court affirmed Appellant’s conviction and the trial

court’s denial of counsel’s motion to withdraw. State v. Poulton, Muskingum CT2013-

0030, 2014 Ohio 1198.

       {¶9}   On December 19, 2013, Appellant filed a petition for post-conviction relief,

pursuant to R.C. 2953.21, asserting his conviction and sentence should be set aside as

he was denied the effective assistance of counsel and was denied the right to counsel of

his choice.
Muskingum County, Case No. CT2015-0041                                                    4


       {¶10} The trial court denied Appellant’s petition for post-conviction relief via

Judgment Entry of July 9, 2015.

       {¶11} Appellant appeals, assigning as error:

       {¶12} “I. THE LOWER COURT ABUSED ITS DISCRETION IN DENYING

APPELLANT’S PETITION FOR POST-CONVICTION RELIEF WITHOUT A HEARING

THEREBY DENYING HIM RIGHT TO COUNSEL GUARANTEED BY THE FIFTH, SIXTH

AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND

ARTICLE I, SECTION TEN OF THE OHIO CONSTITUTION.

       {¶13} “II. THE LOWER COURT ABUSED ITS DISCRETION IN DENYING

APPELLANT’S MOTION FOR APPOINTMENT OF COUNSEL AND EXPERT

ASSISTANCE THEREBY DENYING HIS RIGHTS TO DUE PROCESS AND EQUAL

PROTECTION OF LAW GUARANTEED BY THE FIFTH AND FOURTEENTH

AMENDMENTS         TO    THE    UNITED      STATES      CONSTITUTION        AND     SIMILAR

PROVISIONS OF THE OHIO CONSTITUTION.”

                                                  I

       {¶14} In the first assignment of error, Appellant asserts the trial court erred in

denying his petition for post-conviction relief without a hearing.

       {¶15} R.C. 2953.21(G) reads,

              (G) If the court does not find grounds for granting relief, it shall make

       and file findings of fact and conclusions of law and shall enter judgment

       denying relief on the petition. If no direct appeal of the case is pending and

       the court finds grounds for relief or if a pending direct appeal of the case

       has been remanded to the court pursuant to a request made pursuant to
Muskingum County, Case No. CT2015-0041                                                   5


      division (E) of this section and the court finds grounds for granting relief, it

      shall make and file findings of fact and conclusions of law and shall enter a

      judgment that vacates and sets aside the judgment in question, and, in the

      case of a petitioner who is a prisoner in custody, shall discharge or

      resentence the petitioner or grant a new trial as the court determines

      appropriate. The court also may make supplementary orders to the relief

      granted, concerning such matters as rearraignment, retrial, custody, and

      bail. If the trial court's order granting the petition is reversed on appeal and

      if the direct appeal of the case has been remanded from an appellate court

      pursuant to a request under division (E) of this section, the appellate court

      reversing the order granting the petition shall notify the appellate court in

      which the direct appeal of the case was pending at the time of the remand

      of the reversal and remand of the trial court's order. Upon the reversal and

      remand of the trial court's order granting the petition, regardless of whether

      notice is sent or received, the direct appeal of the case that was remanded

      is reinstated.

      {¶16} In State v. Mapson, 1 Ohio St.3d 217, 438 N.E.2d 910 (1982), the Ohio

Supreme Court held,

             After carefully reviewing the applicable statutes and the policies

      underlying these statutes, this court holds that R.C. 2953.21 mandates that

      a judgment denying post-conviction relief include findings of fact and

      conclusions of law, and that a judgment entry filed without such findings is
Muskingum County, Case No. CT2015-0041                                                 6


     incomplete and it thus does not commence the running of the time period

     for filing an appeal therefrom.

            ***

            The procedural nature of R.C. 2953.21(C) cannot be ignored. This

     section, along with the other sections dealing with post-conviction relief,

     provide a procedure “ * * * to make available ‘the best method of protecting

     constitutional rights of individuals, and, at the same time, provid[ing] a more

     orderly method of hearing such matters.’ ” Kott v. Maxwell (1965), 3 Ohio

     App.2d 337, 338, 210 N.E.2d 746 [32 O.O.2d 457]. This court's holding that

     findings of fact and conclusions of law are part and parcel of a judgment

     denying post-conviction relief fosters the orderliness of this process.

            Important policy considerations also underlie this decision. The

     obvious reasons for requiring findings are “ * * * to apprise petitioner of the

     grounds for the judgment of the trial court and to enable the appellate courts

     to properly determine appeals in such a cause.” Jones v. State (1966), 8

     Ohio St.2d 21, 22, 222 N.E.2d 313 [37 O.O.2d 357]. The existence of

     findings and conclusions are essential in order to prosecute an appeal.

     Without them, a petitioner knows no more than he lost and hence is

     effectively precluded from making a reasoned appeal. In addition, the failure

     of a trial judge to make the requisite findings prevents any meaningful

     judicial review, for it is the findings and the conclusions which an appellate

     court reviews for error. (Footnote omitted.)
Muskingum County, Case No. CT2015-0041                                                     7


       {¶17} Accordingly, a judgment entry without findings of fact and conclusions of

law is not a final, appealable order. State v. Evans, 9th Dist. 10CA0020, 2012-Ohio-1120,

citing State v. Beard, 9th Dist. No. 07CA009240, 2008-Ohio 3722.

       {¶18} Here, the trial court’s July 9, 2015 Judgment Entry denied Appellant’s

petition for post-conviction relief without making the statutorily required findings of fact

and conclusions of law. Pursuant to R.C. 2953.21 and Ohio case law, we find the July 9,

2015 Judgment Entry is not a final appealable order as the entry does not set forth

findings of fact and conclusions of law other than denying Appellant’s petition for post-

conviction relief without a hearing. Accordingly, the appeal is dismissed for lack of a final

appealable order.

                                                 II.

       {¶19} Based upon our disposition of Appellant’s first assignment of error, the

second assigned error is premature.

By: Hoffman, J.

Gwin, P.J. and

Baldwin, J. concur
