City of North Canton v. Hutchinson

[This opinion has been published in Ohio Official Reports at 

75 Ohio St.3d 112

.]




    THE CITY OF NORTH CANTON, APPELLANT, v. HUTCHINSON, APPELLEE.
              [Cite as North Canton v. Hutchinson, 

1996-Ohio-170

.]
Appellate procedure—Directive issued by jail authority releasing defendant and
        suspending commencement of sentence because jail is at maximum
        capacity is not an “order” that may be appealed—R.C. 2505.03(A) and
        2505.02, construed and applied.
                                  __________________
Absent explicit review and judgment by a trial court, a directive issued by a jail
        authority releasing a defendant and suspending the commencement of his
        or her sentence because the jail is at maximum capacity and cannot
        accommodate the defendant is not an “order” that may be appealed. (R.C.
        2505.03[A] and 2505.02, construed and applied.)
                                  __________________
     (No. 94-1893—Submitted December 6, 1995—Decided March 4, 1996.)
          APPEAL from the Court of Appeals for Stark County, No. 9434.
                                  __________________
        {¶ 1} On February 27, 1993, appellee, Nancy K. Hutchinson, was arrested
for disorderly conduct, criminal trespass and resisting arrest. The events leading to
appellee’s arrest resulted from her conduct and refusal to leave a private residence
in North Canton, Ohio where her husband was staying.
        {¶ 2} On June 30, 1993, appellee was convicted on all charges, fined and
sentenced accordingly. The trial court ordered appellee to report immediately to
the Stark County Jail to begin her twelve-day jail term. The judgment entry
regarding these matters was also filed on June 30, 1993.
        {¶ 3} Appellee reported to jail as ordered by the trial court. However, due
to “jail overcrowding,” appellee was issued an “Order of Release” by the shift
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supervisor. The release suspended the commencement of appellee’s jail term. The
release provided that appellee was to return and begin serving her twelve day
sentence on July 3, 1998 at 9:00 a.m.
       {¶ 4} The release was signed by appellee and the shift supervisor.
Appellee’s release was noted by the clerk on the trial court docket sheet and the
release is included in the case file. However, there is nothing in the record
indicating that the release and conditions therein were reviewed by the trial court.
The release was not signed by the court, nor was it part of the June 30, 1993 entry
or any court order or judgment entry.
       {¶ 5} On July 30, 1993, appellee appealed to the Court of Appeals for Stark
County, challenging her convictions, fines and delay in execution of sentence. The
court affirmed the convictions and fines, but remanded the cause to the trial court
with respect to the delay. The court of appeals held that the delay in commencement
of sentence for more than five years was cruel and unusual punishment and that it
violated R.C. 2951.07. The city of North Canton, appellant, appealed to this court
the judgment of the court of appeals involving the delay in the commencement of
sentence.
       {¶ 6} The cause is now before this court pursuant to the allowance of a
discretionary appeal.
                              __________________
       Thomas M. Bernabei, Canton City Law Director, Francis G. Forchione,
Canton City Prosecutor, and Jay J. Pordan, Assistant City Prosecutor, for appellant.
       Todd A. Bergert, for appellee.
       Rittgers & Mengle and W. Andrew Hasselbach, urging affirmance for
amicus curiae, Ohio Association of Criminal Defense Lawyers.
                              __________________


       DOUGLAS, J.




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                                      January Term, 1996




         {¶ 7} The only issue before this court concerns the “Order of Release”
issued by the shift supervisor for the Stark County Jail, releasing appellee and
delaying the commencement of her jail term until July 3, 1998.1 Specifically,
appellant appeals to this court contending that the directive issued by the shift
supervisor was not an appealable “order” and, therefore, the court of appeals was
without jurisdiction to review whether the delay was proper.
         {¶ 8} Appellee, on the other hand, argues that the issue regarding the
suspension of sentence was properly before the court of appeals because the release
issued by the shift supervisor stated that she (appellee) was “released * * * due to
a special journal entry governing jail overcrowding,” and because her release was
noted on the trial court docket sheet. In this regard, appellee asserts that the trial
court had specifically “authorized the jail to release certain defendants and order
them to report back at a future date.” Additionally, appellee asserts that the release
was a final and appealable order because “there is no question that the order affected
a ‘substantial right’ as that term is used in Ohio Revised Code section 2505.02 * *
*.”
         {¶ 9} It is important to first note that this court is deeply concerned with the
issue of jail overcrowding with the results, flowing therefrom in some parts of the
state, of court-ordered sentences of incarceration not being carried out. Some of
the reasons for this crises, as well as facts and figures with relation to the problem,
are fully documented in the well researched and written column of Glenn Gilbert,
Managing Editor of The News-Herald, Willoughby, Ohio, in an article appearing
in The News-Herald of December 9, 1995.2 We are not unaware of such comment.




1. Appellee has not filed a cross-appeal with regard to the affirmance by the court of appeals of her
conviction and sentence.

2. See Appendix, infra.




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        {¶ 10} We are further mindful that it might be of help to the bench and bar
of this state for us to weigh in on the “cruel and unusual” punishment question
presented to us. It would also be appropriate, if we had jurisdiction, to comment
on (1) the possible use of mandamus to bring about a final order that would be
appealable; (2) the applicability or nonapplicability of R.C. 2953.21, post-
conviction relief; (3) the disconcerting and seemingly unlimited power given to
some jailers to pick and choose which sentences of incarceration should be carried
out immediately and those that are to be deferred; and (4) the necessity of legislative
and executive authority to provide the wherewithal for the third branch of
government, the Judiciary, to carry out our sworn responsibilities.
        {¶ 11} It is tempting to us to consider, discuss and rule on some or all of the
foregoing issues and even some others not set forth. In addition, we recognize that
the main issue presented is one that is capable of repetition. However, none of this
matters because the issue being appealed to us does not emanate from an order
which is final and appealable, as explained infra. Accordingly, any opinion we
would render on an issue which is not the subject of a final judgment would be, at
best, advisory in nature. It is, of course, well settled that this court will not indulge
in advisory opinions. See Egan v. National Distillers & Chemical Corp. (1986),

25 Ohio St.3d 176

, 25 OBR 243, 

495 N.E.2d 904

, syllabus; Armco, Inc. v. Pub.
Util. Comm. (1982), 

69 Ohio St.2d 401, 406

, 

23 O.O.3d 361

, 365, 

433 N.E.2d 923, 926

; and Cascioli v. Central Mut. Ins. Co. (1983), 

4 Ohio St.3d 179, 183

, 4 OBR
457, 460, 

448 N.E.2d 126, 129

. Thus, for the reasons which follow we must
respectfully decline to answer the issue presented.
        {¶ 12} The contentions set forth by appellee do not support a finding that
the directive issued by the jail supervisor was an appealable order. R.C. 2505.03(A)
states that “[e]very final order, judgment, or decree of a court and, when provided
by law, the final order of any administrative officer, agency, board, department,
tribunal, commission, or other instrumentality may be reviewed on appeal by a




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                                January Term, 1996




court of common pleas, a court of appeals, or the supreme court, whichever has
jurisdiction.” (Emphasis added.) Further, R.C. 2505.02 sets forth three types of
final orders: “‘(1) an order affecting a substantial right in an action which in effect
determines the action and prevents a judgment; (2) an order affecting a substantial
right made in a special proceeding or made upon summary application after
judgment; or (3) an order vacating or setting aside a judgment or granting a new
trial.’” Groveport-Madison Local Edn. Assn., OEA/NEA v. State Emp. Relations
Bd. (1992), 

62 Ohio St.3d 501, 505-506

, 

584 N.E.2d 700, 703

, citing Chef Italiano
Corp. v. Kent State Univ. (1989), 

44 Ohio St.3d 86, 87-88

, 

541 N.E.2d 64, 67

.
       {¶ 13} The directive issued by the shift supervisor was not an “order” as
that term is used in R.C. 2505.03(A) or 2505.02. It was not an order issued by a
court, nor did it emanate from an administrative entity. R.C. 2505.03(A). In fact,
regardless of the language used in the release, there is nothing in the record
indicating that the trial court was ever aware that commencement of appellee’s jail
term had been suspended. Appellee’s release from jail and suspension of sentence
was granted solely by the jail shift supervisor and not the trial court. Moreover,
although appellee’s release was noted on the docket sheet, the release and
conditions therein were not reviewed and approved by the trial court and the release
was not part of a court order or entry.
       {¶ 14} Thus, we hold that absent explicit review and judgment by a trial
court, a directive issued by a jail authority releasing a defendant and suspending the
commencement of his or her sentence because the jail is at maximum capacity and
cannot accommodate the defendant is not an “order” that may be appealed.
       {¶ 15} Since the order issued by the supervisor of the jail was not an
appealable order, we are, as was the court of appeals, without jurisdiction to
consider whether the delay in commencement of appellee’s sentence was proper.
The appropriate time for us and/or the court of appeals to consider this issue is when
it has properly been appealed from a final order.




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        {¶ 16} Accordingly, since neither the court of appeals nor we had nor have
jurisdiction to consider the issue, we vacate that portion of the judgment of the court
of appeals which dealt with the commencement of sentence issue and, further, we
dismiss this appeal. We remand the case to the trial court which may, on remand,
enforce its order or enter an amended order to reflect deferral of the incarceration
of appellee or take whatever other action the trial court deems appropriate.
                                                                    Appeal dismissed.
        RESNICK, F.E. SWEENEY and PFEIFER, JJ., concur.
        WRIGHT AND PFEIFER, JJ., concur separately.
        MOYER, C.J., WRIGHT and COOK, JJ., concur in the syllabus and judgment.
                               __________________
        PFEIFER, J. concurring.
        {¶ 17} I concur with Justice Douglas’s majority opinion and syllabus, but
regret that the procedural posture of this case kept us from addressing the problems
it illustrates.   The lack of jail space requires sentencing judges to concern
themselves not only with justice, but also with practicalities.
        WRIGHT, J., concurs in the foregoing concurring opinion.
                               __________________




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