-
BEFORE THE SUPREME COURT OF OHIO
STATE OF OHIO
-vs-
PLAINTIFF-APPELLANT
CHRISTOPHER ANDERSON
DEFENDANT-APPELLEE
CASE NO.: 2012-1834
ON APPEAL FROM CASE NO. 11 MA 43BEFORE THE COURT OF APPEALS
FORTHE SEVENTH APPELLATE DISTRICT
APPELLANT-STATE OF OHIO'S MERIT BRIEF
PAUL J. GAINS, 0020323MAHONING COUNTY PROSECUTOR
RALPH M. RIVERA, 0082063ASSISTANT PROSECUTORCounsel of
Record
OFFICE OF THE MAHONING COUNTYPROSECUTOR21 W. BOARDMAN ST., 6TH
FL.YOUNGSTOWN, OH 44503PH: (330) 740-2330FX: (330) 740-2008n¢ains
mahonin ĉ ountyoh.govrriveraa mahonin cgL ountyoh.gov
COUNSEL FOR PLAINTIFF-APPELLANT
APR 01 2013
JOHN B. JUHASZ, 0023777
7081 WEST BLVD., SUITE 4YOUNGSTOWN, OH 44512PH: (330)
758-7700FX: (330) 758-7757jbi iurisdocgyahoo. com
COUNSEL FOR DEFENDANT-APPELLEE
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REME COURT OF OHIO
CLERK OF COURTSUPREME COURT OF OHIO
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Certificate of Service
I certify that a copy of the State of Ohio's Merit Brief was
sent by Regular U.S.
Mail to John B. Juhasz, Esq., at 7081 West Blvd., Suite 4,
Youngstown, OH 44512, on
March 29, 2013.
So Ce
R p . Rive 2063o ppeilant-State of Ohio
ii
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Table of Contents
Page No.:
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . ii
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . ...iii
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . iv
STATEMENT OF THE CASE, FACTS, ANIi INTRODUCTION
........:...................1
LAW AND ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . ...9
Proposition of Law; ...
..................................................................9
A Trial Court's Denial of a Pre-Trial Motion to Dismiss Based
upon aViolation of a Defendant's Right to Due Process and the
ProhibitionAgainst Double Jeopardy Following a Hung Jury is Not a
Final
Appealable Order Pursuant to R.C. 2505.02.
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . ..3 5
APPENDIX Appx. Page:
Notice of Appeal to the Supreme Court of Ohio (October 29, 2012)
.....................A
Judgment Entry (En Banc Decision), Seventh District Court of
Appeals
(September 25, 2012) . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . ... . . . . ....B
Judgment Entry (Granting En Banc Consideration), Seventh
District Court of Appeals(December 13, 2011) . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . .. . . ..............C
Judgment Entry (Denying Reconsideration), Seventh District Court
of Appeals(October 4, 2011) .. ... . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . ..D
Judgment Entry (Denying State's Motion to Dismiss), Seventh
District Court ofAppeals (June 10, 2011)
.........................................................................E
Judgment Entry (Denying Defendant's Motion to Dismiss), Court of
Common Pleas
(February 15, 2011) . . ... . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . ...F
iii
-
Table of Authorities
CASES:
Abney v. United States, 431 U.S. 651 (1977)
................................................14, 30
Arizona v. Washington, 434 U.S. 497 (1978)
............:......................................33
Benton v. Maryland, 395 U.S. 784 (1969)
.......................................................32
Bishop v. Dresser Industries, 134 Ohio App.3d 321 (3'd Dist.
1999) .........................23
Blueford v. Arkansas, 132 S.Ct. 2044 (2012)
...................................................34
City ofMentor v. Babul, 11th Dist. No. 98-L-244 (July 16, 1999)
........................23, 24
Cuervo v. Snell, lOth Dist. Nos. 99AP-1442, 99AP-1'443,
99AP-1458, 2000 WL 1376510(Sept. 26, 2000) . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . ..26
Downum v. United States, 372 U.S. 734 (1963)
................................................33
Gibson-Myers & Assocs. v. Pearce, 9th Dist. No. 19358, 1999
WL 980562(Oct. 27, 1999) . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . ...26
Hamilton Cty. Bd. of Mental Retardation & Developmental
Disabilities v. Professionals
Guild of Ohio, 46 Ohio St.3d 147 (1989) ................
..................................... .18
Harpster v. Ohio, 128 F.3d 322 (6th Cir., 1997)
................................................32
In re Olivia C., 371 Ill.App.3d 473 (4t1i Dist. 2007)
............................................31
McKane v. Durston, 153 U.S. 684 (1894)
.......................................................32
Natl. City Commercial Capital Corp. v. AAAA at Your Serv.,
Inc.,114 Ohio St.3d 82 (2007)
...................................................................................18
Paul v. People, 105 P.3d 628 (Colo. 2005)
......................................................31
People ex rel. Mosley v. Carey, 74 I11.2d 527 (1979)
..........................................31
Polikoff v. Adam (1993), 67 Ohio St.3d 100 (1993)
............................................20
Oregon v. Kennedy, 456 U.S. 667 (1982)
........................................................33
State ex rel. Downs v. Panioto, 107 Ohio St.3d 347 (2006)
...................................18
iv
-
State ex rel. Owens v. Campbell, 27 Ohio St.2d 264 (1971)
..................................13
State ex rel. White v. Junkin, 80 Ohio St.3d 335 (1997)
...............................16, 25, 35
State v. Anderson, 7th Dist. No. 03 MA 252, 2006 Ohio 4618
..................1, 2, 3, 4, 5, 6
State v. Anderson, 7th Dist. No. 11 MA 43, 2012 Ohio 4390
.................................... . . . . . . . . . . ..... ...
. ... ... ... ... .....1, b, 9, 12, 16, 17, 19, 20, 23, 24, 25, 26,
28, 30, 32, 33, 35
State v. Anderson, 112 Ohio St.3d 1443, 860 N.E.2d 767
......................... ...........5
State v. Apodaca, 123 N.M. 372 (1997)
.........................................................31
State v. Brown, 8th Dist. No. 84229, 2004 Ohio 5587
.....................................23, 24
State v. Chambliss, 128 Ohio St.3d 507 (2011)
......................................21, 22, 27
State v. Cook, 5h Dist. No. 07 CA 39, 2007 Ohio 6446
.......................................28
State v. Crago, 53 Ohio St. 3d 243 (1990)
..........................................................................................................1,
9, 10, 13, 14, 15, 16, 17, 18, 20, 24, 27, 28, 32
State v. Crago, 48 Ohio St.3d 708 (1990)
........................................................15
State v. Eberhardt, 56 Ohio App.2d 193 (8th Dist. 1978)
......................................10
State v. Hubbard, 135 Ohio App.3d 518 (7a' Dist.
1999)............1, 7, 8, 9, 10, 17, 24, 26
State v. Hunt, 47 Ohio St.2d 170 (1976)
.........................................................10
State v. Jones, l lth Dist. No. 98-P-01 16, 1999 WL 33100648
(Jan. 29, 1999) ...............28
State v. Kuttie, 7th Dist. No. 01 CA 528, 2002 Ohio 1029
.....................................20
State v. Lebron, 7th Dist. No. 99 CA 35, 1999 WL 1124762 (Nov.
22, 1999) ..............28
State v. Lile, 42 Ohio App.2d 89 (7th Dist. 1974)
..........................................10, 28
State v. Muncie, 91 Ohio St.3d 440 (2001)
................................21, 22, 23, 24, 25, 26
State v. Murphy, 537 N.W.2d 492 (Minn. Ct. App. 1995)
................................31, 32
State v. Nemes, 963 A.2d 847 (N.J. Super. Ct. App. Div. 2008)
..............................31
State v. Roper, 9th Dist. No. 20836, 2002 Ohio 7321
..........................................33
v
-
State v. Saadey, 7th Dist. No. 99 CO 49, 2000 WL 1114519 (June
30, 2000) .......... 24,25
State v. Tate, 179 Ohio App.3d 71 (2008)
..............................................17, 23, 24
State v. Thomas, 61 Ohio St.2d 254 (1980)
.............................................13, 14, 20
State v. Upshaw, 110 Ohio St.3d 189 (2006)
.................................22, 23, 25, 26, 27
Swearingen v. Waste Technologies Industries, 134 Ohio App.3d
702(7n' Dist. 1999) .............................
..................................................24, 25
United States v. Gonzalez-Lopez, 548 U.S. 140 (2006)
.......................................27
United States v. Perez, 22 U.S. 579 (1824) .....................
..............................33
Wenzel v. Enright, 68 Ohio St.3d 63 (1993)
.....................13, 16, 25, 26, 27, 28, 30, 31
West v. Commonwealth, 249 Va. 241 (1995)
....................................................31
Youngstown v. Ortiz, 153 Ohio App.3d 271 (7th Dist. 2003)
..............................10, 17
CONSTITUTIONAL PROVISIONS:
Ohio Constitution, Article IV, Section 3(B)(2)
.................................................10
STATUTES:
Am.Sub.H.B. No. 394, 1998 Ohio Laws 148
...................................................21
R.C. 2505.02 .....................10, 11, 15, 17, 18, 19, 20,
21, 22, 23, 24, 25, 26, 27, 28, 29, 35
RULES:
App.R. 26(A)(2)(d) . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . ..7
S.Ct.Prac.R. 7.01(A)(6), formally S.Ct.Prac.R. 2.2(A)(6) . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
....7
vi
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Statement of the Case, Facts, and Introduction
Here, this Honorable Court is presented with the State's sole
proposition of law:
A Trial Court's Denial of a Pre-Trial Motion to Dismiss Based
upon a Violation of a
Defendant's Right to Due Process and the Prohibition Against
Double Jeopardy
Following a Hung Jury is Not a Final Appealable Order Pursuant
to R.C. 2505.02.
The Seventh District, sitting en banc, concluded (2-2) that a
trial court's denial of
a defendant's motion to dismiss based upon his rights to Due
Process and Double
Jeopardy following a hung jury is a final appealable order
pursuant to R.C. 2505.02. See
State v. Anderson, 7a' Dist. No. 11 MA 43, 2012 Ohio 4390
(Appendix B.). This is an
obvious error that directly conflicts with this Honorable
Court's decisions in State v.
Crago, 53 Ohio St. 3d 243 (1990), and the Seventh District's own
decision in State v.
Hubbard, 135 Ohio App.3d 518 (7th Dist. 1999).
In 2003, Defendant-Appellee Christopher Anderson was convicted
of Murder and
sentenced to fifteen years to life for killing 22-year-old Amber
Zurcher, who was
strangled to death in her apartment on June 3, 2003. The Seventh
District previously
summarized the facts that supported Defendant's initial
conviction:
In June of 2003, Amber Zurcher was 22 years old,
attendedYoungstown State University and was working as a waitress.
Shealso had a four-year-old child. At approximately 11:00 p.m.
onthe evening of June 2, 2003, Amber went to Chipper's Bar
inYoungstown. (11/18/03 Tr., p. 472.) A number of her friends
andacquaintances were there, including John Orosz, a friend whogrew
up in the same home as Amber but was not actually relatedto her.
John Orosz owned a pizza shop near Chipper's Bar, and hewent from
the pizza shop to the bar a number of times in thecourse of the
evening. The following people were also atChipper's Bar that night:
Sandy Shingleton, a close friend ofAmber's; Lynn Sanisteven, sister
of Sandy Shingleton; VivianCampati, a fairly recent acquaintance of
Amber's; Anthony(Tony) Loibl, a friend from Amber's high school
days; and Dino
1
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Socciarelli, another friend of Amber's. [Defendant] was at the
bar
as well.
After the bar closed, all the aforementioned people went
toAmber's apartment, located at 1031 Compass West, inAustintown.
(11/18/03 Tr., p. 565.) They continued drinking, andsome of them
became extremely intoxicated during the evening.Some of the people
were smoking marijuana. At approximately2:30 a.m., John Orosz, Lynn
Sanisteven, and [Defendant] left theapartment to go to Orosz's
pizza shop. (11/18/03 Tr., p. 405.)According to Orosz, the three of
them made pizzas andsandwiches, delivered some pizzas to the west
side ofYoungstown, and then returned to Amber's apartment.
(11/18/03Tr., p. 405.) After this, various people began leaving the
party.Dino and Vivian left first. (11/18/03 Tr., pp. 523-524.) Tony
andLynn left together sometime later. At that point, Amber was in
theapartment with John Orosz, Sandy Shingleton and
[Defendant].Sandy was asleep in the bedroom while the other three
sat andtalked in another room.
At approximately 3:50 a.m. the three remaining guests-JohnOrosz,
Sandy Shingleton and [Defendant]-left Amber'sapartment. (11/18/03
Tr., p. 408.) Orosz gave Amber a hug,locked the door from the
inside, closed the door, and checked tosee that it was locked.
(11/18/03 Tr., p. 410.) Orosz testified thatAmber was fully clothed
at the time he left. (11/18/03 Tr., p. 410.)Orosz, Shingleton and
[Defendant] then left in [Defendant]'s car.[Defendant] drove the
short distance to Orosz's pizza shop, anddropped off the two
passengers. (11/18/03 Tr., p. 425.)[Defendant] drove away, and
Orosz did not know his destination.(11/18/03 Tr., p. 425.)
Later that morning, Amber's mother (Diane Whiteman) wasconcerned
that Amber had not picked up her son. Amber wasscheduled to pick up
her son at 6:00 a.m. After a number ofunsuccessful attempts to
reach her by phone, Ms. Whiteman wentto Amber's apartment. She
obtained a key from the apartmentmanager, entered the apartment,
and found her daughter dead,lying naked on the floor near the door.
She immediately called thepolice. Later investigations did not find
any signs of forced entryinto the apartment, and the apartment did
not appear to have beenrobbed. (11/18/03 Tr., p. 569.)
There were ligature marks around Amber's neck consistentwith
strangulation by a cord or wire. (11/18/03 Tr., p. 577.) The
2
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police were not able to identify what cord or wire was used
to
strangle her.
Samples were taken from under Amber's fingernails and from abite
wound in her left breast. [Defendant]'s DNA was identifiedin the
fingernail sample, along with that of her son and anunidentified
third person. Only [Defendant]'s DNA was found inthe breast
wound.
On June 6, 2003, the day of Amber's funeral, a number of
herfriends gathered at Chipper's Bar to reminisce.
[Defendant]arrived and was wearing a jacket with long sleeves. When
heremoved the jacket, witnesses noticed scratches on his hands
andarms that were not there three nights earlier. John
Oroszconfronted [Defendant] about the scratches. (11/18/03 Tr.,
p.416.) Orosz also contacted the police with this
information.[Defendant] failed to show up at the police station to
havepictures taken of the scratches or to discuss the DNA test
results.(11/18/03 Tr., p. 613.)
On August 20, 2003, detectives executed a search warrant
of[Defendant]'s home. An arrest warrant was issued soon
afterward,but police could not locate [Defendant]. On August 22,
2003,based on an anonymous tip, [Defendant] was located and
arrestedat the Super 8 Motel in Liberty Township, Trumbull County.
Theroom was not registered in [Defendant]'s name.
On August 29, 2003, [Defendant] was indicted for the murderof
Amber Zurcher pursuant to R.C. § 2903.02(A), (D).[Defendant] was
found to be indigent, and counsel was appointed.Trial was set for
May 27, 2003. On the day of trial, [Defendant]filed a motion to
prevent the state from introducing evidence ofprior bad acts as set
forth in Evid.R. 404. [Defendant] wished toprevent Donna Dripps
from testifying about an incident in which[Defendant] allegedly
choked her and bit her on one breast.[Defendant] also wished to
prevent Bradley Windle, his probationofficer, from testifying. The
trial judge sustained the motion toprohibit any evidence involving
the Donna Dripps' incident;Bradley Windle was permitted to testify
under certain restrictions.(5/27/03 Tr., pp. 334 ff.)
During the trial, witness Nichole Ripple made a reference tothe
attack on Donna Dripps. (5/27/03 Tr., p. 374.) Ms. Rippletestified
that: "[Amber] said, no, he's a freak. He tried to stranglehis
ex-girlfriend." (5/27/03 Tr., p. 374.) Ms. Ripple's commentwas
repeated on the evening news. The next day, the trial court
3
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declared a mistrial based on the undue prejudice caused by
Ms.Ripple's comment and by the media attention to it.
Retrial was scheduled for November 18, 2003. Prior to
retrial,the state filed a motion in limine to allow Donna Dripps
andBradley Windle to testify. (10/15/03 Motion in
Limine.)[Defendant] did not respond to the motion. The motion was
heardimmediately prior to retrial, and [Defendant]'s counsel
indicatedthen that he had not received the motion. The court
proceededwith the hearing, and [Defendant]'s counsel restated his
earlierarguments concerning the unfounded nature of Donna
Dripps'testimony. He also relied on the fact that the trial court
haddeclared a mistrial based on the slightest mention of the
incident.The trial court changed its position, though, and allowed
DonnaDripps to testify. She described an incident on February 16,
2002,in which she was visiting her brother and his roommate, and
inwhich [Defendant] was also present. (11/18/03 Tr., pp.
781-782.)She testified that at about 4:00-4:30 a.m., Donna's
brother androommate went to bed upstairs and she was left alone in
the roomwith [Defendant]. (11/18/03 Tr., p. 786.) She stated
that[Defendant] kissed her, picked her up and carried her to
abedroom, put his hands around her throat and choked her.
Shetestified that he fondled and grabbed her, and bit her on the
breast.(11/18/03 Tr., p. 788.) She noted that he did not attempt
tounbutton or take off her pants. She recalled that the struggle
lastedabout 20 minutes, after which [Defendant] rolled off of her
andpassed out. (11/18/03 Tr., p. 791.)
During trial, a number of the people who had been at
Amber'sapartment on the morning of the murder were called to
testify,including Sandra Shingleton, Anthony Loibl, Vivian Campati,
andDino Socciarelli. They testified about the events leading up to
thetime of the murder, and they all identified [Defendant] as being
atthe party at Amber's house. Orosz testified extensively as to
thetiming of the events of that night. He indicated that he left
with[Defendant] and Sandy Shingleton just before 4:00 a.m., and
thatAmber was alive and well at that time.
Deputy Coroner Jesse Giles testified that the approximate timeof
death was 4:00 a.m. Amber had multiple bruises on her body,and
there was a distinct contusion on her left breast that appearedto
be "more of a love bite or a hickey or a sucker bite."
(11/18/03Tr., p. 740.) She also had a deep scalp contusion. All of
theseoccurred fairly close to the time of death. There were
ligaturemarks completely around her neck, indicating at least four
loopsof some type of cord. The precise type of cord was not
identified.
4
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The cause of death was determined to be asphyxia due to
ligaturestrangulation. (11/18/03 Tr., p. 758.)
Melissa Zielaskiewicz, a forensic scientist at the Ohio Bureauof
Criminal Identification and Investigation, testified
that[Defendant]'s DNA was found in the test sample taken
fromAmber's left breast. (11/18/03 Tr., p. 833.) No other
person'sDNA was found in that sample. [Defendant]'s DNA was
alsofound under Amber's left fingernails, along with a lesser
amountof DNA from Amber's son and that of an unidentified
thirdperson. (11/18/03 Tr., pp. 834-838.) There was no evidence
offoreign DNA in the oral, vaginal, or rectal samples taken
fromAmber. (11/18/03 Tr., p. 828.)
On November 26, 2003, the jury returned a guilty verdict onthe
charge of murder. After a sentencing hearing, [Defendant]
wassentenced to 15 years to life in prison. (12/4/03 J.E.).
State v. Anderson, 7th Dist. No. 03 MA 252, 2006 Ohio 4618, at
¶¶ 2-16. The Seventh
District, however, reversed Defendant's conviction after it
concluded that testimony
regarding his other crimes and bad acts amounted to cumulative
error. See id. at ¶ 128,
appeal not accepted, 112 Ohio St.3d 1443, 860 N.E.2d 767.
The testimony regarding Defendant's other crimes and bad acts
was provided by
Donna Dripps (Defendant's previous victim four months earlier)
and Bradley Windle
(Defendant's probation officer). See id. at ¶ 1.
During Defendant's first trial, the trial court excluded the
introduction of evidence
that Defendant previously attacked and strangled Donna Dripps in
a manner similar to
Amber Zurcher. See id. During trial, the trial judge declared a
mistrial after a witness,
Nicole Ripple, mentioned the Donna Dripps incident through
hearsay evidence.
At Defendant's second trial, the trial court allowed Donna
Dripps herself to testify
about the prior incident, in which Appellant choked her and bit
her breast, as he
subsequently did to Amber Zurcher. See id. at ¶ 19.
5
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Bradley Windle (Defendant's probation officer) testified about a
number of
probation violations that occurred immediately prior to and
during Amber Zurcher's
murder investigation. See id.
Thus, following Defendant's conviction during his second trial,
the Seventh
District concluded (2-1) that the trial court erred in allowing
Donna Dripps and Bradley
Windle to testify, and their testimony regarding Defendant's
other crimes and bad acts
amounted to cumulative error. See id. at ¶ 128.
Defendant's third trial began in December 2008, but resulted in
a hung jury. See
Anderson, 2012 Ohio 4390, ¶ 6.
Defendant's fourth trial began in April 2010, but ended in a
mistrial trial after one
of Defendant's trial counsel fell asleep during voir dire. The
trial court declared a mistrial
after a potential juror commented on this fact in front of the
entire venire. See id. at ¶ 7.
Defendant's fifth trial began in August 2010, but for the second
time, ended in a
hung jury. See id. at ¶ 8.
On February 2, 2011, prior to Defendant's sixth trial, Defendant
filed a Motion to
Dismiss Indictment and for Discharge, in which he argued that
making him submit to a
sixth trial violated his right to Due Process and the
prohibition against Double Jeopardy.
On February 15, 2011, the trial court denied Defendant's motion
to dismiss.
(Appendix F.) Thereafter, Defendant filed a notice of appeal on
March 17, 2011.
On March 28, 2011, the State filed a motion to dismiss
Defendant's appeal based
upon this Court's opinion in Crago, and argued that the trial
court's denial of his motion
to dismiss was not a final appealable order pursuant to R.C.
2505.02. On June 10, 2011,
the Seventh District, however, denied (2-1) the State's motion.
(Appendix E.)
6
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The State filed an Application for En Banc Consideration and
Reconsideration on
June 20, 2011, because the Seventh District previously followed
and applied Crago. In
Hubbard, the Seventh District held "the overruling of a motion
to dismiss on the grounds
of double jeopardy is not an appealable order subject to
immediate review." Hubbard,
135 Ohio App.3d at 522. This previous holding formed the basis
of the State's
Application for En Banc Consideration.
The State's Application for Reconsideration was denied on
October 4, 2011.
(Appendix D.)
The State's Application for En Banc Consideration was granted on
December 13,
2011. (Appendix C.) Oral argument was held on February 2,
2012.
On September 25, 2012, sitting en banc, a majority of Seventh
District judges
were unable to concur on whether or not the trial court's denial
of Defendant's motion to
dismiss was a final appealable order. Thus, the original panel's
decision in which the
Seventh District denied the State's motion to dismiss remained.
See App.R. 26(A)(2)(d).
The Seventh District erroneously concluded that based upon "the
applicable law
and limited to the very specific facts of this case where there
have been multiple
mistrials," the trial court's denial of a motion to dismiss
based upon a defendant's right to
due process and prohibition against double jeopardy is a final
appealable order pursuant
to R.C. 2505.02. (Appendix E, ¶ 4.)
On October 29, 2012, the State filed its Notice of Appeal and
Memorandum in
Support of Jurisdiction pursuant to S.Ct.Prac.R. 7.01(A)(6),
formerly S.Ct.Prac.R.
2.2(A)(6). Defendant filed his response on November 26, 2012. On
February 6, 2013, this
Honorable Court accepted jurisdiction of the State's appeal.
7
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The State now responds with its Merit Brief and requests that
this Honorable
Court Vacate the Seventh District's decision, and hold that the
trial court's denial of a
motion to dismiss based upon a defendant's right to due process
and prohibition against
double jeopardy is not a final appealable order pursuant to R.C.
2505.02.
8
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Law and Argument
Proposition of Law: A Trial Court's Denial of a Pre-TrialMotion
to Dismiss Based upon a Violation of a Defendant's Rights toDue
Process and the Prohibition Against Double Jeopardy Followinga Hung
Jury is Not a Final Appealable Order Pursuant to R.C.
2505.02.
As for the State of Ohio's sole proposition of law, the State
contends that a trial
court's denial of a pre-trial motion to dismiss based upon a
violation of a defendant's
rights to due process and the prohibition against double
jeopardy following a hung jury is
not a final appealable order pursuant to R.C. 2505.02.
Here, the trial court denied Defendant's motion to dismiss in
which he argued that
a sixth trial following a hung jury violated his right to due
process and the prohibition
against double jeopardy. The Seventh District, sitting en banc,
erroneously concluded (2-
2) that based upon "the applicable law and limited to the very
specific facts of this case
where there have been multiple mistrials," the trial court's
denial of Defendant's motion
to dismiss is a final appealable order pursuant to R.C. 2505.02.
(Appendix E, ¶ 4.)
Therefore, the Seventh District's decision must be reversed,
because the Seventh
District ignored this Honorable Court's clear precedent in Crago
when it concluded that
the trial court's denial of Defendant's motion to dismiss
following a hung jury and
declaration of a mistrial is a final appealable order pursuant
to R.C. 2505.02.
As Judge Vukovich's dissenting opinion pointed out, "an
appellate court cannot
violate Supreme Court precedent because the appellate court
disagrees with that
precedent, especially in response to a defendant's claim that we
should ignore the
Supreme Court's position because it is `absurd."' Anderson, 2012
Ohio 4390, at ¶ 50
9
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(Vukovich, J., dissenting), citing Crago, 53 Ohio St.3d at 245.
But that is exactly what
the Seventh District did.
A. IN CRIMINAL CASES, OHIOAPPELLATE COURTS ONLY
ACQUIREJURISDICTION OVER THOSE TRIAL COURTORDERS THAT ARE FINAL AND
APPEALABLEPURSUANT TO THE REOUIREMENTS IN R.C. 2505.02.
It is well settled that Ohio's appellate courts have subject
matter jurisdiction over
lower courts' decisions only if those decisions are final orders
or judgments. See Ohio
Constitution, Article IV, Section 3(B)(2). Thus, "[i]f an order
is not final, then an
appellate court has no jurisdiction to review the matter and the
appeal must be
dismissed." Youngstown v. Ortiz, 153 Ohio App.3d 271, 276 (7"'
Dist. 2003), citing
Hubbard, 135 Ohio App.3d at 522.
In criminal cases, a trial court order is final and appealable
only if the
requirements set forth in R.C. 2505.02 are met. Ortiz, 153 Ohio
App.3d at 276, citing
Crago, 53 Ohio St.3d at 244. "Generally, the final appealable
order in a criminal case is
the sentencing order." Ortiz, 153 Ohio App.3d at 276, citing
State v. Hunt, 47 Ohio St.2d
170, 174 (1976).
Furthermore, the denial of a defendant's motion to dismiss in a
criminal case is
generally not considered a final appealable order. See State v.
Eberhardt, 56 Ohio App.2d
193, 197 (8' Dist. 1978), citing State v. Lile, 42 Ohio App.2d
89, 90 (7t1i Dist. 1974).
To satisfy R.C. 2505.02 in criminal cases, the trial court order
must satisfy one of
the following requirements before an appellate court may acquire
jurisdiction:
(1) An order that affects a substantial right in an action that
ineffect determines the action and prevents a judgment;
10
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(2) An order that affects a substantial right made in a
specialproceeding or upon a summary application in an action
after
judgment;
(3) An order that vacates or sets aside a judgment or grants a
new
trial;
(4) An order that grants or denies a provisional remedy and
towhich both of the following apply:
(a) The order in effect determines the action with respect to
theprovisional remedy and prevents a judgment in the actionin favor
of the appealing party with respect to the
provisional remedy.
(b) The appealing party would not be afforded a meaningful
oreffective remedy by an appeal following final judgment asto all
proceedings, issues, claims, and parties in the action.
(5) An order that determines that an action may or may not
be
maintained as a class action;
(6) An order determining the constitutionality of any changes
tothe Revised Code made by Am. Sub. S.B. 281 of the 124thgeneral
assembly, including the amendment of sections1751.67, 2117.06,
2305.11, 2305.15, 2305.234, 2317.02,2317.54, 2323.56, 2711.21,
2711.22, 2711.23, 2711.24,2743.02, 2743.43, 2919.16, 3923.63,
3923.64, 4705.15, and5111.018, and the enactment of sections
2305.113, 2323.41,2323.43, and 2323.55 of the Revised Code or any
changesmade by Sub. S.B. 80 of the 125th general assembly,
includingthe amendment of sections 2125.02, 2305.10,
2305.131,2315.18, 2315.19, and 2315.21 of the Revised Code;
(7) An order in an appropriation proceeding that may be
appealedpursuant to division (B)(3) of section 163.09 of the
Revised
Code.
R.C. 2505.02(B). Here, the issue is whether a trial court's
denial of a defendant's pre-trial
motion to dismiss based upon a violation of his right to due
process and the prohibition
against double jeopardy following a hung jury and declaration of
a mistrial is a final and
appealable order pursuant to R.C. 2505.02.
11
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THE DENIAL OF DEFENDANT'SPRE-TRIAL MOTION TO DISMISSBASED ON THE
PROHIBITION AGAINSTDOUBLE JEOPARDY AND HIS RIGHT TODUE PROCESS
FOLLOWING A HUNG JURY ANDDECLARATION OF A MISTRIAL IS NOT A
FINALAPPEALABLE ORDER PURSUANT TO R.C. 2505.02.
Here, prior to Defendant's sixth trial (following one reversal
and four mistrials),
Defendant filed a Motion to Dismiss Indictment and for
Discharge, in which he argued
that making him submit to a sixth trial violated his right to
Due Process and the
prohibition against Double Jeopardy. Defendant sought appellate
review after the trial
court denied his motion.
The Seventh District, sitting en banc, concluded (2-2) that the
trial court's denial
of Defendant's motion to dismiss based upon his rights to Due
Process and Double
Jeopardy following a hung jury was a final appealable order
pursuant to R.C. 2505.02.
See Anderson, 2012 Ohio 4390, at ¶ 28.
The Seventh District reasoned that Crago and Hubbard were
distinguishable,
because they only addressed a double jeopardy argument rather
than a double jeopardy
and a due process argument. See Anderson, 2012 Ohio 4390, at ¶
13. The court also
stated that the facts were distinguishable, because Defendant
raised this argument before
his sixth trial, while Crago and Hubbard both addressed a double
jeopardy argument
after only one trial. See id. at ¶ 15.
In analyzing R.C. 2505.02, the Seventh District found that a
motion to dismiss fell
into the category of provisional remedies. See id. at ¶ 24. The
court then reasoned that
Defendant would be denied a meaningful appeal if he was unable
to assert his argument
before his sixth trial. See id. at ¶ 24.
12
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Thus, the Seventh District erroneously concluded that based upon
"the applicable
law and limited to the very specific facts of this case where
there have been multiple
mistrials," the trial court's denial of a motion to dismiss
based upon a defendant's right to
due process and prohibition against double jeopardy is a final
appealable order pursuant
to R.C. 2505.02. (Appendix E, ¶ 4.) This is an obvious error
that directly conflicts with
this Honorable Court's decisions in Crago and Wenzel v. Enright,
68 Ohio St.3d 63
(1993).
a.) This Honorable Court's ClearPrecedent has Held that the
Denialof a Defendant's Motion to Dismisson Double Jeopardy Grounds
is Not a FinalAppealable Order, and the Proper Remedyfor Seeking
Judicial Review is a Direct AppealAfter Trial Court Proceedings
Have Concluded.
In 1980, this Court held that the trial court's denial of a
motion to dismiss on
double jeopardy grounds was a final appealable order. State v.
Thomas, 61 Ohio St.2d
254, 257-258 (1980), overruling State ex rel. Owens v. Campbell,
27 Ohio St.2d 264, 267
(1971).
This Court's opinion in Thomas effectively overruled its earlier
decision in State
ex rel. Owens v. Campbell, in which this Court held that "[t]he
extraordinary original
jurisdiction granted to an Ohio appellate court may be invoked
to adjudicate the right of
an accused to the benefit of the doctrine of collateral
estoppel, made applicable to the
state as being within the federal constitutional right against
double jeopardy by Ashe v.
Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469." Owens, 7
Ohio St.2d at
syllabus.
13
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In Thomas, the defendant was charged with an aggravated robbery
that occurred
on October 18, 1977. See Thomas, 61 Ohio St.2d at 255. The
Defendant pleaded guilty to
the lesser-included offense of robbery on January 25, 1978, and
was sentenced on
February 13, 1978. See id. Thereafter, on April 17, 1978, the
defendant was charged with
involuntary manslaughter after the victim died from injuries
sustained during the robbery.
See id. The defendant filed a motion to dismiss based on double
jeopardy grounds, but
the trial court denied the motion. See id.
The defendant appealed the trial court's denial, but the
appellate court determined
that the trial court's denial was not a final appealable order.
See id. This Court accepted
the defendant's discretionary appeal. See id.
In Thomas, this Court reasoned that the trial court's order
affected a "substantial
right" (double jeopardy), and review before judgment was
necessary to preserve this
right. See id. at 258, citing Abney v. United States, 431 U.S.
651, 660 (1977). This Court
then concluded that a defendant's motion to dismiss was a
"special proceeding," because
"an erroneous decision on a double jeopardy claim cannot be
effectively reviewed after
judgment within the second trial ** *." See Thomas, 61 Ohio
St.2d at 258.
Thus, this Court held in Thomas that the denial of a pre-trial
motion to dismiss
based upon double jeopardy grounds was a final appealable order
pursuant to R.C.
2953.02 and 2505.02. See id.
This Court, however, overruled Thomas ten years later in
Crago.
In Crago, a jury found the defendant guilty of aggravated
robbery and
kidnapping. See Crago, 53 Ohio St. 3d at 243. The jury found the
defendant not guilty of
aggravated murder that arose from the kidnapping, but instead
found him guilty of
14
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involuntary manslaughter. See id. The trial court, however,
declared a mistrial after the
jury was unable to reach a verdict on the aggravated murder that
arose from the
aggravated robbery. See id.
Before the defendant could be retried, he filed a motion to
dismiss on double
jeopardy and collateral estoppel grounds. See id. at 243-244.
The trial court denied his
motion and the defendant appealed. See id. at 244. The Tenth
District affirmed the trial
court's denial based upon double jeopardy, but affirmed in-part
the court's decision in
regards to collateral estoppel. See id. The Tenth District
concluded that collateral estoppel
barred the retrial of aggravated murder that arose from the
kidnapping. See id.
This Court accepted the defendant's discretionary appeal. See
id. After briefing
and oral argument, this Court sua sponte ordered the parties to
brief the following issue:
"[W]hether denial of a motion to dismiss a charge on the basis
of double jeopardy is a
final appealable order in accordance with the criteria set forth
in R.C. 2505.02."
(Emphasis sic.) Id., quoting State v. Crago, 48 Ohio St.3d 708
(1990).
In Crago, this Court recognized that a trial court's denial of a
motion to dismiss
based upon double jeopardy grounds is not a final order, because
it does not meet any of
three prongs set forth in R.C. 2505.02. See Crago, 53 Ohio St.
3d at 244. When Crago
was decided in 1990, R.C. 2505.02 read as follows:
An order that affects a substantial right in an action which in
effectdetermines the action and prevents a judgment, an order
thataffects a substantial right made in a special proceeding or
upon asummary application in an action after judgment, or an order
thatvacates or sets aside a judgment or grants a new trial is a
finalorder that may be reviewed, affirmed, modified, or reversed,
withor without retrial.
15
-
Id. at 244, fn. 2, quoting R.C. 2505.02. Thus, this Court
specifically held that "[t]he
overruling of a motion to dismiss on the ground of double
jeopardy is not a final
appealable order." Crago, at syllabus.
Here, the Seventh District was bound by this Court's decision in
Crago, because
this Court has not overruled or modified it in anyway. To the
contrary, in Wenzel v.
Enright, this Court reaffirmed Crago:
To avoid any further confusion on this issue, we now hold
thatthe decision of a trial court denying a motion to dismiss on
theground of double jeopardy is not a final appealable order, and
isnot subject to judicial review through an action in habeas corpus
orprohibition, or any other action or proceeding invoking the
originaljurisdiction of an appellate court. We further hold that,
in Ohio, theproper remedy for seeking judicial review of the denial
of a motionto dismiss on the ground of double jeopardy is a direct
appeal tothe court of appeals at the conclusion of the trial court
proceedings.
Wenzel, 68 Ohio St.3d at 66-67; see also State ex Yel. White v.
Junkin, 80 Ohio St.3d 335,
338 (1997) (concluding that a direct appeal is the appropriate
avenue to challenge a pre-
trial denial of a motion to dismiss on double jeopardy
grounds).
Therefore, the Seventh District ignored this Court's clear
precedent that "[t]he
overruling of a motion to dismiss on the ground of double
jeopardy is not a final
appealable order." Crago, at syllabus. And it remains that "the
proper remedy for seeking
judicial review of the denial of a motion to dismiss on the
ground of double jeopardy is a
direct appeal to the court of appeals at the conclusion of the
trial court proceedings."
Wenzel, 68 Ohio st.3d at 66-67.
Furthermore, Defendant's due process argument is equally
applicable to this
Court's precedent that dealt strictly with double jeopardy. As
Judge Vukovich's
dissenting opinion pointed out, "[i]f the denial of a motion to
dismiss on double jeopardy
16
-
and collateral estoppel grounds does not involve a substantial
right that determines the
action and prevents a judgment, then neither does the denial of
a motion to dismiss on
double jeopardy and due process grounds." Anderson, 2012 Ohio
4390, at ¶ 67
(Vukovich, J., dissenting), citing Crago, 53 Ohio St.3d at 244,
fn. 2, Hubbard, 135 Ohio
App.3d at 522, and State v. Tate, 179 Ohio App.3d 71, 77-78
(2008) Accordingly, "there
is no reason to treat the labels for the motion differently for
purposes of appealability."
Anderson, 2012 Ohio 4390, at ¶ 66 (Vukovich, J.,
dissenting).
b.) Pursuant to Crazo and Wenzel,a Defendant's Motion to Dismiss
BasedUpon Due Process and Double JeopardyGrounds is Not a Final
Appealable OrderPursuant to R.C. 2505.02, and the ProperRemedy for
Seekin2 Judicial Review Remainsa Direct Appeal After a Defendant is
Convicted.
As stated above, a trial court order must satisfy one of the
following requirements
in R.C. 2505.02(B) before an appellate court may acquire
jurisdiction. See Ortiz, 153
Ohio App.3d at 276, citing Crago, 53 Ohio St.3d at 244.
i.) R.C. 2505.02(B)(1).
First, an appellate court can acquire jurisdiction over "[a]n
order that affects a
substantial right in an action that in effect determines the
action and prevents a
judgment[.]" R.C. 2505.02(B)(1). "`Substantial right' means a
right that the United States
Constitution, the Ohio Constitution, a statute, the common law,
or a rule of procedure
entitles a person to enforce or protect." R.C.
2505.02(A)(1).
Here, there is no doubt that Defendant's rights to due process
and the prohibition
against double jeopardy are "substantial rights" that both the
U.S. and Ohio Constitutions
17
-
recognize. The question here is whether the trial court's denial
of Defendant's motion to
dismiss "in effect determines the action and prevents a
judgment[.]" R.C. 2505.02(B)(l).
To begin, this Court specifically concluded in Crago that the
trial court's denial of
a motion to dismiss on, double jeopardy grounds did not involve
a substantial right that
determined the action and prevented a judgment in the
defendant's favor. See Crago, 53
Ohio St.3d at 244. This subsection has remained unaffected since
Crago was decided;
thus, Crago remains controlling in regards to whether the trial
court's denial determined
the action and prevented a judgment in favor of Defendant. See
R.C. 2505.02(B)(1).
More recently, this Court has stated that "[f]or an order to
determine the action
and prevent a judgment for the party appealing, it must dispose
of the whole merits of the
cause or some separate and distinct branch thereof and leave
nothing for the
determination of the court." Natl. City Commercial Capital Corp.
v. AAAA at Your Serv.,
Inc., 114 Ohio St.3d 82, 83 (2007), quoting Hamilton Cty. Bd. of
Mental Retardation &
Developmental Disabilities v. Professionals Guild of Ohio, 46
Ohio St.3d 147, 153
(1989), and citing State ex rel. Downs v. Panioto, 107 Ohio
St.3d 347, ¶ 20 (2006).
In accordance with Natl. City Commercial Capital Corp., the
trial court's denial
of Defendant's motion to dismiss did not "dispose of the whole
merits of the cause" and
"leave nothing for the determination of the court." Natl. City
Commercial Capital Corp.,
114 Ohio St.3d at 83. Following the denial, the "whole merits"
(whether Defendant
murdered Amber Zurcher) remained, which was to be answered by
the trier of fact at
trial. Thus, the trial court's denial did not determine the
action and prevent a judgment for
Defendant.
18
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Furthermore, Defendant's due process argument is equally
applicable to the
double jeopardy analysis, because both arguments (whether under
due process or double
jeopardy) seek to avoid an additional trial. Accordingly, "there
is no reason to treat the
labels for the motion differently for purposes of
appealability." Anderson, 2012 Ohio
4390, at ¶ 66 (Vukovich, J., dissenting). Thus, the Seventh
District did not acquire
jurisdiction merely because Defendant added a due process
argument to his motion to
dismiss.
Finally, Defendant only argued that the Seventh District
acquired jurisdiction
through R.C. 2505.02(B)(1) (Appellant's Reply to State's Motion
to Dismiss Appeal,
April 5, 2011, at 1.); see Anderson, 2012 Ohio 4390, at ¶ 62
(Vukovich, J., dissenting).
Defendant did not address any other subsections in R.C.
2505.02(B).
Therefore, the Seventh District did not acquire jurisdiction
through R.C.
2505.02(B)(1) over the trial court's denial of Defendant's
motion to dismiss on due
process and double jeopardy grounds.
ii.) R.C. 2505.02(B)(2).
Second, an appellate court can acquire jurisdiction over "[a]n
order that affects a
substantial right made in a special proceeding or upon a summary
application in an action
after judgment[.]"R.C. 2505.02(B)(2).
Again, there is no doubt that Defendant's rights to due process
and the prohibition
against double jeopardy are "substantial rights" that both the
U.S. and Ohio Constitutions
recognize. The question here is whether the trial court's denial
of Defendant's motion to
dismiss was "made in a special proceeding." R.C.
2505.02(B)(2).
19
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Revised Code 2505.02(A)(2) defines "special proceedings" as "an
action or
proceeding that is specially created by statute and that prior
to 1853 was not denoted as
an action at law or a suit in equity." See also State v. Kuttie,
7th Dist. No. 01 CA 528,
2002 Ohio 1029, *1, citing Polikoffv. Adam ( 1993), 67 Ohio
St.3d 100, 107 (1993), and
former R.C. 2505.02(A)(1).
In Thomas, this Court concluded that a proceeding on a
defendant's motion to
dismiss for double jeopardy should be considered a special
proceeding within R.C.
2505.02. See Thomas, 61 Ohio St.2d at 258. This Court, however,
overruled Thomasin
Crago when it specifically concluded that the trial court's
denial of a motion to dismiss
on double jeopardy grounds did not affect a substantial right
made in a special
proceeding. See Crago, 53 Ohio St.3d at 244; Anderson, 2012 Ohio
4390, at ¶ 63
(Vukovich, J., dissenting). Thus, Crago remains controlling,
because this subsection too
has remained unaffected since Crago was decided.
Again, Defendant's due process argument is equally applicable to
the double
jeopardy analysis. See Anderson, 2012 Ohio 4390, at ¶¶ 66-67
(Vukovich, J., dissenting).
Furthermore, Defendant failed to set forth any argument before
the Seventh
District that it acquired jurisdiction through R.C.
2505.02(B)(2), and the Seventh District
likewise did not find that it acquired jurisdiction through R.C.
2505.02(B)(2). See
Anderson, 2012 Ohio 4390, at ¶¶ 1-44.
Therefore, the Seventh District did not acquire jurisdiction
through R.C.
2505.02(B)(2) over the trial court's denial of Defendant's
motion to dismiss on due
process and double jeopardy grounds.
20
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iii.) R.C. 2505.02(B)(3).
Third, an appellate court can acquire jurisdiction over "[a]n
order that vacates or
sets aside a judgment or grants a new trial[.]" R.C.
2505.02(B)(3).
Here, Defendant did not appeal an order that vacated a judgment
or granted a new
trial.
Therefore, the Seventh District did not acquire jurisdiction
through R.C.
2505.02(B)(3) over the trial court's denial of Defendant's
motion to dismiss on due
process and double jeopardy grounds.
iv.) R.C.2505.02(B)(4).
Fourth, an appellate court can acquire jurisdiction over "[a]n
order that grants or
denies a provisional remedy" if that order "determines the
action with respect to the
provisional remedy and prevents a judgment in the action in
favor of the appealing party
with respect to the provisional remedy[,]" and "[t]he appealing
party would not be
afforded a meaningful or effective remedy by an appeal following
final judgment as to all
proceedings, issues, claims, and parties in the action." R.C.
2505.02(B)(4).
Here, Appellant did not contend that the court acquired
jurisdiction through R.C.
2505.02(B)(4) before the Seventh District. The Seventh District,
however, appeared to
have based its decision on this subsection.1
In State v. Muncie, this Court previously set forth a three-part
test to determine
whether a decision granting or denying a provisional remedy is a
final order:
(1) the order must either grant or deny relief sought in a
certaintype of proceeding-a proceeding that the General Assembly
calls
1 Revised Code 2505.02(B)(4) did not exist when Crago and Wenzel
were decided, but
was later added when R.C. 2505.02 was amended in 1998 by
Am.Sub.H.B. No. 394,
1998 Ohio Laws 148.
21
-
a "provisional remedy," (2) the order must both determine
theaction with respect to the provisional remedy and prevent
ajudgment in favor of the appealing party with respect to
theprovisional remedy, and (3) the reviewing court must decide
thatthe party appealing from the order would not be afforded
ameaningful or effective remedy by an appeal following
finaljudgment as to all proceedings, issues, claims, and parties in
the
action.
State v. Chambliss, 128 Ohio St.3d 507, 509 (2011), quoting
State v. Muncie, 91 Ohio
St.3d 440, 446 (2001); see R.C. 2505.02(B)(4).
A.) Provisional Remedy.
First, the trial court's denial of Defendant's motion to dismiss
(whether it's based
upon double jeopardy or due process grounds) was not a
provisional remedy.
Revised Code 2505.02(A)(3) defines a "provisional remedy" as "a
proceeding
ancillary to an action, including, but not limited to, a
proceeding for a preliminary
injunction, attachment, discovery of privileged matter,
suppression of evidence, a prima-
facie showing pursuant to section 2307.85 or 2307.86 of the
Revised Code, a prima-facie
showing pursuant to section 2307.92 of the Revised Code, or a
finding made pursuant to
division (A)(3) of section 2307.93 of the Revised Code."
For example, this Court concluded in Muncie that an order for
forced medication
was a provisional remedy, because "the involuntary
administration of medication to an
accused person for the purpose of restoring that person's
competency to face criminal
charges `aids' in the resolution of the criminal proceeding and
is `attendant upon' that
proceeding." Muncie, 91 Ohio St.3d at 450.
Likewise in Upshaw, this Court concluded that an order finding a
criminal
defendant incompetent to stand trial that compels treatment to
restore his competency is a
22
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provisional remedy, because it aids the criminal proceeding. See
State v. Upshaw, 110
Ohio St.3d 189, 192-193 (2006).
Here, Defendant's motion to dismiss does not involve a
provisional remedy,
because his motion to dismiss the indictment is not ancillary to
the criminal action.
In Muncie, this Court adopted the defendants' broader definition
of ancillary:
"[a]n ancillary proceeding is one that is attendant upon or aids
another proceeding."
Muncie, 91 Ohio St.3d at 448, quoting Bishop v. Dresser
Industries, 134 Ohio App.3d
321, 324 (3' Dist. 1999); see also R.C. 2505.02(A)(3).
For example, the Seventh District previously concluded that a
defendant's motion
to dismiss his indictment was not ancillary to the criminal
action, because it did not aid
the action and is not attendant upon the action. See Anderson,
2012 Ohio 4390, at ¶ 59
(Vukovich, J., dissenting), citing Tate, 179 Ohio App.3d 76
(concluding that a trial
court's denial of a defendant's motion for discharge under
Criminal Rule 12(K) is not a
final appealable order), and State v. Brown, 8th Dist. No.
84229, 2004 Ohio 5587, ¶ 11
(concluding that the trial court's sua sponte dismissal of a
criminal complaint pursuant to
Criminal Rule 48(B) without prejudice is not a final appealable
order).
Further, the Eleventh District recognized that "a motion to
dismiss is not
`provisional' in nature because the status quo may not be
preserved depending on how
the trial court rules on the motion. For instance, if the trial
court grants the motion to
dismiss, then the adjudication of the motion may be dispositive
of the entire proceeding."
Anderson, 2012 Ohio 4390, at ¶ 60 (Vukovich, J., dissenting),
City of Mentor v. Babul,
11 th Dist. No. 98-L-244 (July 16, 1999).
23
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Unlike the order in Muncie, a defendant's pre-trial motion to
dismiss (whether it's
based upon double jeopardy and/or due process) cannot be
ancillary to the action,
because it seeks to terminate the entire criminal proceeding
against the defendant rather
than aid the criminal action. Accordingly, Defendant's motion to
dismiss his indictment
on double jeopardy and due process grounds does not involve a
provisional remedy,
because it is not ancillary to the criminal action. See
Anderson, 2012 Ohio 4390, at ¶ 61
(Vukovich, J., dissenting), citing Hubbard, 135 Ohio App.3d at
521, Tate, 179 Ohio
App.3d at 76, Brown, supra at ¶ 11, and Babul, supra.
Thus, Judge Vukovich's dissenting opinion properly concluded
that the Seventh
District did not acquire jurisdiction over the trial court's
denial of Defendant's motion to
dismiss pursuant to R.C. 2505.02(B)(4).
B.) Determine the Action and Preventa Judgment in Defendant's
Favor.
Second, this Court previously concluded in Crago that the denial
of a defendant's
motion to dismiss on double jeopardy and collateral estoppel
grounds did not determine
the action and prevent a judgment for the appealing party. See
Crago, 53 Ohio St.3d at
244. While R.C. 2505.02(B)(4)(a) did not exist when Crago was
decided, its language
mirrors R.C. 2505.02(B)(1) that did exist.
For example, as stated above, this Court found in Muncie that an
order for forced
medication determined the action:
The forced medication order issued by the trial court
determinedthe action against Muncie with respect to Ross's petition
for forcedmedication. The order definitively provided that the
physicians atTwin Valley could administer medication to Muncie
against hiswill in an effort to restore his competency to stand
trial. The orderalso prevented a judgment in favor of Muncie with
respect to theproceeding for forced medication, as it contained no
provision
24
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permitting Muncie to contest either the administration or
dosageamounts of the drugs listed in Ross's letter.
Muncie, 91 Ohio St.3d at 450-451, citing Swearingen v. Waste
Technologies Industries,
134 Ohio App.3d 702, 713 (7th Dist. 1999), and State v. Saadey,
7th Dist. No. 99 CO 49,
2000 WL 1114519 (June 30, 2000).
Likewise in Upshaw, the finding that the criminal defendant was
incompetent to
stand trial required him to begin treatment in a lock-down
facility. See Upshaw, 110 Ohio
St.3d at 193. This order determined the action, because a later
reversal (assuming it was
erroneous) could not cure the deprivation of liberty during his
period of commitment and
treatment. See id.
Unlike Muncie and Upshaw, the trial court's denial of
Defendant's motion to
dismiss could be cured should an appellate court conclude that
the trial court's order was
erroneous.
Thus, the trial court's denial of Defendant's motion to dismiss
his indictment on
double jeopardy and due process grounds did not determine the
action and prevent a
judgment for Defendant.
C.) Meaningful and Effective Remedy.
Third, this Court also previously concluded that a defendant has
a meaningful and
effective remedy in the ordinary course of law to challenge a
trial court's adverse
decision on a double jeopardy issue. See Anderson, 2012 Ohio
4390, at ¶ 55 (Vukovich,
J., dissenting), citing Wenzel, 68 Ohio St.3d at 66, and State
ex rel. White, 80 Ohio St.3d
at 338.
"This division of the final order statute recognizes that, in
spite of courts' interest
in avoiding piecemeal litigation, occasions may arise in which a
party seeking to appeal
25
-
from an interlocutory order would have no adequate remedy from
the effects of that order
on appeal from final judgment. In some instances, `[t]he
proverbial bell cannot be unrung
and an appeal after final judgment on the merits will not
rectify the damage' suffered by
the appealing party." Muncie, 91 Ohio St.3d at 451, quoting
Gibson-Myers & Assocs. v.
Pearce, 9ffi Dist. No. 19358, 1999 WL 980562, at *2 (Oct. 27,
1999), and citing Cuervo v.
Snell, lOtl' Dist. Nos. 99AP-1442, 99AP-1443, 99AP-1458, 2000 WL
1376510 ( Sept. 26,
2000).
In Wenzel, this Court recognized that "there exists an adequate
remedy in the
ordinary course of law to challenge an adverse ruling on the
issue, to wit: an appeal to the
court of appeals at the conclusion of the trial court
proceedings." Wenzel, 68 Ohio st.3d at
66.
In fact, the Seventh District likewise concluded in Hubbard that
a meaningful and
effective remedy (by way of an appeal following conviction)
exists: "Appellant in this
case would not be denied a meaningful or effective appeal on the
issue of double
jeopardy, along with any other trial issue that may develop,
should he be required to wait
until conviction and sentence before an appeal is taken.
Moreover, appellant may still be
acquitted at trial, rendering the issue moot." Anderson, 2012
Ohio 4390, at ¶ 56
(Vukovich, J., dissenting), quoting Hubbard, 135 Ohio App.3d at
521.
Now compare Muncie, in which this Court concluded "that an
incompetent
defendant subject to an order compelling the involuntary
administration of psychotropic
medication would have no meaningful or effective remedy by an
appeal following final
judgment[,]" because the person would be forced to endure the
side effects of the
26
-
medications during the pendency of the proceedings. And any
relief would come after
those medications were ingested. See Muncie, 91 Ohio St.3d at
452.
Likewise in Upshaw, this Court reasoned that the defendant would
be denied a
meaningful appeal because the "mistake is uncorrectable,"
because the defendant would
have already been subjected to a period of commitment and forced
medication. See
Upshaw, 110 Ohio St.3d at 193.
More recently in Chambliss, this Court concluded that the
pre-trial removal of a
criminal defendant's retained counsel of choice would not be
afforded a meaningful and
effective appeal following conviction. See Chambliss, 128 Ohio
St.3d at 511 (addressing
only the third prong under R.C. 2505.02(B)(4)(b) after the state
conceded the first two
prongs). This Court's conclusion stemmed from the U.S. Supreme
Court's decision "that
the erroneous denial of the right to retained counsel of choice
constitutes structural error,
which would mean that the court of appeals would automatically
reverse the conviction."
(Emphasis sic.) Chambliss, 128 Ohio St.3d at 511, citing United
States v. Gonzalez-
Lopez, 548 U.S. 140, 148 (2006).
In concluding that the removal of retained counsel of choice
satisfied the third
prong, this Court reasoned that the choice of counsel has a
direct effect on the trial's
outcome; and thus, could not be cured with a second trial. See
Chambliss, 128 Ohio St.3d
at 510-511, citing Gonzalez-Lopez, 548 U.S. at 148-150.
Unlike Chambliss and Gonzalez-Lopez, the trial court's denial of
Defendant's
pre-trial motion to dismiss on double jeopardy and/or due
process grounds does not have
a direct effect on the trial proceedings like the removal of
retained counsel. And unlike
Muncie and Upshaw, the error (if any at all) could be
correctable during appellate review.
27
-
Furthermore, there are several other substantial rights that
appellate review has
historically given criminal defendants a meaningful and
effective review after conviction:
• Fourth Amendment right against Unreasonable Searches and
Seizures. See
State v. Lebron, 7th Dist. No. 99 CA 35, 1999 WL 1124762 (Nov.
22, 1999)(concluding that the denial of the defendant's motion to
suppress is not a finalappealable order); State v. Jones, 11ffi
Dist. No. 98-P-0116, 1999 WL33100648, at *3 (Jan. 29, 1999)
(stating that motions to suppress "can beeffectively examined and
appropriate relief granted when the case isterminated by way of
trial or by pleading to the charges while reservingappellate review
of the denied motion to suppress evidence.").
• Fifth Amendment right against Double Jeopardy. See Crago, at
syllabus;
Wenzel, at syllabus.
• Sixth Amendment right to a Speedy Trial. See State v. Cook,
5"' Dist. No. 07
CA 39, 2007 Ohio 6446, ¶ 15 (concluding that "in the absence of
a directappeal from a conviction, the denial of a defendant's
motion to dismiss onspeedy trial grounds is not a final appealable
order."); Lile, 42 Ohio App.2d at
90 (the denial of the defendant's motion to dismiss for failure
to bring him totrial within 90 days was not a final appealable
order).
These examples demonstrate that appellate review after
conviction affords defendants a
meaningful and effective review of their alleged constitutional
violations.
Thus, a direct appeal to the court of appeals after conviction
remains an adequate
remedy in the ordinary course of law to challenge an adverse
ruling on a defendant's
motion to dismiss (regardless of whether it is based upon due
process or double
jeopardy), because it affords defendants a meaningful and
effective review. See
Anderson, 2012 Ohio 4390, at ¶ 56 (Vukovich, J.,
dissenting).
Simply put, the proverbial bell has yet to ring.
Therefore, the Seventh District did not acquire jurisdiction
through R.C.
2505.02(B)(4) over the trial court's denial of Defendant's
motion to dismiss on due
process and double jeopardy grounds.
28
-
v.) R.C.2505.02(B)(5).
Fifth, an appellate court can acquire jurisdiction over "[a]n
order that determines
that an action may or may not be maintained as a class action."
R.C. 2505.02(B)(5).
Here, Defendant did not appeal an order that determined a class
action.
Therefore, the Seventh District did not acquire jurisdiction
through R.C.
2505.02(B)(5) over the trial court's denial of Defendant's
motion to dismiss on due
process and double jeopardy grounds.
vi.) R.C. 2505.02(B)(6).
Sixth, an appellate court can acquire jurisdiction over "[a]n
order determining the
constitutionality of any changes to the Revised Code made by Am.
Sub. S.B. 281 of the
124th general assembly, * * * or any changes made by Sub. S.B.
80 of the 125th general
assembly, * * * [.]" R.C. 2505.02(B)(6).
Here, Defendant did not appeal an order that determined the
constitutionality of
any changes to the Revised Code made by Am. Sub. S.B. 281 of the
124th general
assembly or Sub. S.B. 80 of the 125th general assembly.
Therefore, the Seventh District did not acquire jurisdiction
through R.C.
2505.02(B)(6) over the trial court's denial of Defendant's
motion to dismiss on due
process and double jeopardy grounds.
vii.) R.C. 2505.02(B)(7).
Seventh, an appellate court can acquire jurisdiction over "[a]n
order in an
appropriation proceeding that may be appealed pursuant to
division (B)(3) of section
163.09 of the Revised Code." R.C. 2505.02(B)(7).
Here, Defendant did not appeal an order from an appropriation
proceeding.
29
-
Therefore, the Seventh District did not acquire jurisdiction
through R.C.
2505.02(B)(7) over the trial court's denial of Defendant's
motion to dismiss on due
process and double jeopardy grounds.
c.) The U.S. Supreme Court'sOpinion in Abney Did Not Mandate,as
a Matter of Federal ConstitutionalLaw, that a State Provide a
Mechanismfor an Interlocutory Appeal from the Denial of aMotion to
Dismiss on Double Jeopardy Grounds.
Judge DeGenaro's concurring opinion reasoned that this Court's
decisions in
Crago and Wenzel are contrary to the U.S. Supreme Court's
interpretation of the issue at
hand. See id. at ¶ 34 (DeGenaro, J., concurring), quoting Abney,
431 U.S. at 659-662.
Judge DeGenaro stated that this Court was "superficially
dismissive" of Abney,
because this Court "failed to address the entire constitutional
analysis of Abney" and
ignored the holdings in Benton and McKane[.]" See id. at ¶ 38
(DeGenaro, J.,
concurring). Essentially, Judge DeGenaro's concurring opinion
reasoned that a
defendant's right against double jeopardy would be violated if
he is subjected to a second
trial for the same offense, regardless of the circumstances that
led to the second trial.
Thus, Judge DeGenaro concluded that a defendant must be afforded
appellate review
before the State can proceed to the second trial. See id. at ¶¶
41-44 (DeGenaro, J.,
concurring).
First, the U.S. Supreme Court clearly interpreted a federal
statute in Abney when
it held "that pretrial orders rejecting claims of former
jeopardy, such as that presently
before us, constitute `final decisions' and thus satisfy the
jurisdictional prerequisites of
[28 U.S.C.] 1291." Abney, 431 U.S. at 662. This Court recognized
the same in Wenzel:
"Abney does not mandate, as a matter of federal constitutional
law, that a state provide a
30
-
mechanism for an interlocutory appeal from the denial of a
motion to dismiss on grounds
of double jeopardy." Wenzel, 68 Ohio St.3d at 67, fn. 1.
Thus, if a defendant is to be afforded such review, it must be
done through the
Revised Code or a specific Rule of Procedure. And because Ohio
law does not provide
for such a mechanism, an Ohio state defendant does not have a
right to an interlocutory
appeal of the denial of a motion to dismiss for double jeopardy
and/or due process
grounds.
Second, several states have likewise concluded that Abney did
not mandate, as a
matter of federal law, that a state provide a defendant with an
interlocutory appeal from
the denial of a motion to dismiss on grounds of double jeopardy.
See, e.g., West v.
Commonwealth, 249 Va. 241, 243 (1995); State v. Apodaca, 123
N.M. 372, 374-376
(1997) (concluding that a defendant may appeal a trial court's
denial of a motion to
dismiss on double jeopardy grounds because of the state
constitution, not Abney); People
ex rel. Mosley v. Carey, 74 I11.2d 527, 541 (1979), superseded
by rule as stated in, In re
Olivia C., 371 I11.App.3d 473, 476 (4 th Dist. 2007) (rule of
procedure allows a defendant
to appeal a trial court's denial of a motion to dismiss on
double jeopardy grounds); State
v. Nemes, 963 A.2d 847, 847-848 (N.J. Super. Ct. App. Div. 2008)
(concluding that
Abney was not binding on the states); Paul v. People, 105 P.3d
628, 632-633 (Colo.
2005) (concluding that a defendant does not have an appeal of
right from trial court's
denial of a motion to dismiss on double jeopardy grounds, but
review may be sought
through the court's adopted rules of procedure); State v.
Murphy, 537 N.W.2d 492, 494-
495 (Minn. Ct. App. 1995) (concluding that Abney does not
entitle a defendant to an
31
-
appeal of right from trial court's denial of a motion to dismiss
on double jeopardy
grounds, but recognizing that a state rule of procedure allows
for discretionary appeals).
Thus, like Wenzel, several states have concluded that the U.S.
Supreme Court's
decision in Abney is not binding on the states because it
addressed a specific federal
statute that allowed for such review. Accordingly, to obtain
such review in Ohio, it must
be authorized either through the Revised Code or the applicable
Rules of Procedure.
Third, Judge DeGenaro's reliance on U.S. Supreme Court cases is
misplaced,
because neither of the cases she relied upon specifically
addressed the issue of whether a
state defendant has a right to appeal the trial court's denial
of a pre-trial motion to dismiss
on double jeopardy and/or due process grounds before his second
trial. See Benton v.
Maryland, 395 U.S. 784 (1969) (holding that the Fifth
Amendment's prohibition against
double jeopardy was applicable to the states through the
Fourteenth Amendment);
McKane v. Durston, 153 U.S. 684 (1894) (addressing a state
offender's right to bail
during the appellate process after conviction).
Furthermore, the Seventh District's reliance on the Sixth
Circuit's decision in
Harpster v. Ohio was likewise misplaced, because the Sixth
Circuit specifically
recognized that "under Ohio law, `the overruling of a motion to
dismiss on the grounds of
double jeopardy is not a final appealable order."' (Emphasis
sic.) Harpster v. Ohio, 128
F.3d 322, 326 (6t1i Cir., 1997), quoting Crago, 53 Ohio St. 3d
at 244. Thus, the Sixth
Circuit's opinion in Harpster does not lend any support to
Defendant's argument.
Here, it must remain that "[t]he overruling of a motion to
dismiss on the ground of
double jeopardy is not a final appealable order." Crago, at
syllabus. And Defendant's due
32
-
process argument is equally applicable to the double jeopardy
analysis. See Anderson,
2012 Ohio 4390, at ¶¶ 66-67 (Vukovich, J., dissenting).
The Seventh District's prevailing opinion did nothing more than
create an
exception to this Court's general rule that prohibits a criminal
defendant from appealling
a denial of a motion to dismiss where there are multiple trials.
See Anderson, 2012 Ohio
4390, at ¶ 28 ("In this case, appellant has already subject to
preparing for five trials over
a seven-year period. * * * We believe that fundamental fairness
and constitutional
protections provide appellant a right to appeal at this time the
trial court's ruling on his
motion to dismiss/discharge.").
The Seventh District opinion clearly took into account the
number of trials that
Defendant faced before he filed his motion to dismiss. As Judge
Vukovich pointed out,
"[a]ppealability should not be based upon the number of prior
cases and/or what type of
events resulted in mistrials. Such factors may be relevant to
the eventual merit
determination, but they do not govern appealability." Anderson,
2012 Ohio 4390, at ¶ 52
(Vukovich, J., dissenting).
Here, there is no dispute that Defendant had not been placed in
jeopardy by the
second hung jury, because it is well established that the Double
Jeopardy Clause does not
bar a "retrial where there is a`manifest necessity' for
declaring a mistrial." State v.
Roper, 9t1i Dist. No. 20836, 2002 Ohio 7321, ¶ 73, citing United
States v. Perez, 22 U.S.
579, 580 (1824). And a "hung jury remains the prototypical
example" of a manifest
necessity. Roper, supra at ¶ 73, quoting Oregon v. Kennedy, 456
U.S. 667, 672 (1982),
and citing Downum v. United States, 372 U.S. 734, 736 (1963);
accord Arizona v.
Washington, 434 U.S. 497, 509 (1978).
33
-
Finally, Chief Justice John Roberts recently reminded us that
"[t]he Double
Jeopardy Clause protects against being tried twice for the same
offense. The Clause does
not, however, bar a second trial if the first ended in a
mistrial." (Emphasis added.)
Blueford v. Arkansas, 132 S.Ct. 2044, 2048 (2012).
34
-
Conclusion
It remains "that the proper legal remedy is to raise any double
jeopardy
contentions by a pretrial motion to dismiss and, if the motion
is denied, to file a direct
appeal from the subsequent conviction." (Emphasis sic.)
Anderson, 2012 Ohio 4390, at ¶
47 (Vukovich, J., dissenting), citing State ex rel. White, 80
Ohio St.3d at 338. And this
Court's "rationale behind Crago is just as applicable to his due
process argument as it is
to his double jeopardy argument since both arguments revolve
around the same principles
of general fairness" Anderson, 2012 Ohio 4390, at ¶ 65
(Vukovich, J., dissenting). Thus,
"there is no reason to treat the labels for the motion
differently for purposes of
appealability." Anderson, 2012 Ohio 4390, at ¶ 66 (Vukovich, J.,
dissenting).
Therefore, this Honorable Court must Reverse the Seventh
District's decision and
conclude that the denial of a pre-trial motion to dismiss on
Double Jeopardy and/or Due
Process grounds is not a final appealable order pursuant to R.C.
2505.02.
Respectfully Submitted,
PAUL J. GAINS, 0020323MAHONING COUNTY PROSECUTOR BY:
1VI: RIV , 082063SECUTOR
of Record
Office of the Mahoning County Prosecutor21 W. Boardman St., 6th
FloorYoungstown, OH 44503-1426PH: (330) 740-2330FX: (330)
740-2008pgainskmahoningcountyoh. govrrivera(a^mahoningcountyoh.
govCounsel for Appellant-State of Ohio
35
-
APPENDIX - A
Notice of Appeal to the Supreme Court of OhioOctober 29,
2012
-
BEFORE THE SUPREME COURT OF OHIO
STATE OF OHIO CASE NO.: ^ .^8 04
PLAINTIFF-APPELLANT
-vs-
CHRISTOPHER ANDERSON
ON APPEAL FROM CASE NO. 11 MA 43BEFORE THE COURT OF APPEALS
FORTHE SEVENTH APPELLATE DISTRICT
DEFENDANT-APPELLEE
APPELLANT-STATE OF OHIO'S NOTICE OF APPEAL
PAUL J. GAINS, 0020323MAHONING COUNTY PROSECUTOR
RALPH M. RIVERA, 0082063ASSISTANT PROSECUTORCounsel of
Record
OFFICE OF THE MAHONING COUNTYPROSECUTOR21 W. BOARDMAN ST., 6TH
FL.YOUNGSTOWN, OH 44503PH: (330) 740-2330FX: (330) 740-2008n
¢ains(a-),mahoningcountyoh. govrrivera0,mahonin ĉ ountVoh.gov
COUNSEL FOR PLAINTIFF-APPELLANT
JOHN B. JUHASZ, 0023777
7081 WEST BLVD., SUITE 4YOUNGSTOWN, OH 44512PH: (330)
758-7700FX: (330) 758-7757jbiiurisdocAyghoo. com
COUNSEL FOR DEFENDANT-APPELLEE
^0CT 2 9 2012
'.;^ (A)URlKbA .;UURI JF OHIO
-
Notice of Appeal of Appellant-State of Ohio
Appellant-State of Ohio hereby gives notice of appeal to the
Supreme Court of
----____Ohio from the judgment of the Mahoning County Court of
Appeals, Seventh Appellate
District, entered in State of Ohio v. Christopher Anderson, Case
No. 11 MA 43, on
September 25, 2012, in which the Seventh District, sitting en
bane, concluded (2-2) that
the trial court's denial of Defendant's motion to dismiss the
indictment based upon his
right to Due Process and the prohibition against Double Jeopardy
was a fmal appealable
order pursuant to R.C. 2505.02. See S.Ct.Prac.R. 2.2(A)(6).
Defendant's notice of appeal was filed in the Seventh District
on March 17, 2011.
The State filed a motion to dismiss Defendant's appeal and
argued that the trial court's
denial of his motion to dismiss was not a final appealable order
pursuant to R.C. 2505.02.
The Seventh District (2-1) denied the State's motion on June 10,
2011.
The State filed an Application for En Banc Consideration and
Reconsideration on
June 20, 2011. The State's Application for Reconsideration was
denied on October 4,
2011.
The State's Application for En Banc Consideration was granted on
December 13,
2011.
On September 25, 2012, sitting en banc, a majority of the judges
in the Seventh
District were unable to concur on whether or not the trial
court's denial of Defendant's
motion to dismiss was a final appealable order; therefore, the
original panel's decision in
which the Seventh District denied the State's motion to dismiss
Defendant's appeal
remained. State v. Anderson, 7th Dist. No. 11 MA 43, 2012 Ohio
4390.
2
-
This case raises a substantial constitutional question and is
one of great public and
general interest.
Respectfully Submitted,
PAUL J. GAINS, 0020323MAHONING COUNTY PROSECUTOR BY:
RALP RIVE 63SISTANT PROSECUTOR
Counsel of Record
Office of the Mahoning County Prosecutor21 W. Boardman St., 6th
Fl.Youngstown, OH 44503-1426PH: (330) 740-2330FX: (330) 740-2008p
ag insAmahonin cg ountyoh.govrriveraa mahonin cg ountyoh.
govCounsel for Appellant-State of Ohio
Certificate of Service
I certify that a copy of the State of Ohio's Notice of Appeal
was sent by ordinaryU.S. mail to the following parties on October
26, 2012:
John B. Juhasz, Esq.7081 West Blvd., Suite 4Youngstown, OH
44512
Timothy Young, Esq.Ohio State Public DefenderOffice of the Ohio
Public Defender250 E. Broad Street, Suite 1400Columbus, OH
43215
So Certified,
(Ralph M. , 20Couri ^or Appe ant-State of Ohio
3
-
APPENDIX - B
Judgment Entry (En Banc Decision, 2-2)Seventh District Court of
Appeals
September 25, 2012
-
STATE OF OHIO, MAHONING COU
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO,
PLAINTIFF-APPELLEE,
V.
CHRISTOPHER L. ANDERSON,
SEP 2 5.2012
CASE NO. 11-MA-43
OPINIONS UPONEN BANC
CONSIDERATION
DEFENDANT-APPELLANT.
CHARACTER OF PROCEEDINGS:
APPEARANCES:For Plaintiff-Appellee
For Defendant-Appellant
JUDGES:
Hon. Gene DonofrioHon. Joseph J. VukovichHon. Cheryl L.
WaiteHon. Mary DeGenaro
Criminal Appeal from Court of CommonPleas of Mahoning County,
OhioCase No. 02CR854
In that a majority ofunable to concur, theoriginal panel
shall26(A)(2)(d)
the judges aredecision of theremain. App.R.
Paul GainsProsecutorRalph RiveraAssistant Prosecutor21 West
Boardman St., 6th FloorYoungstown, Ohio 44503
Attorney John Juhasz7081 West Boulevard, Suite 4Youngstown, Ohio
44512-4362
Dated: September 25, 2012
-
-1-
DONOFRIO, J.
{11} Defendant-appellant, Christopher Anderson, appeals from a
Mahoning
County Common Pleas Court judgment denying his Motion to Dismiss
Indictment and
for Discharge from the scheduled trial. Plaintiff-appellee, the
State of Ohio, filed a
motion to dismiss this appeal alleging that the trial court's
denial of appellant's motion
for discharge is not a final, appealable order. This court
overruled the state's motion,
finding that in this particular situation where there have been
multiple mistrials, the
order appealed is a final, appealable order as defined by R.C.
2505.02. The state
next requested that we sit en banc to hear the finality issue,
arguing that our decision
was in conflict with one of our prior decisions. We granted the
state's request and
held an en banc hearing to determine whether the denial of
appellant's motion for
discharge was immediately appealable.
{12} We now proceed with a determination solely as to the
appealability of
the trial court's judgment overruling appellant's motion to
dismiss/discharge.
{13} Appellant has had five trials thus far.
{14} During the first trial, the trial court excluded certain
other acts evidence,
which was then brought up by a state's witness. The trial court
declared a mistrial
finding that no corrective instruction to the jury could
overcome the weight of the
improper comment by the state's witness.
{¶5} During the second trial, the court allowed the other acts
evidence and
also allowed evidence of appellant's probation violations. A
jury found appellant
guilty in November 2003. On appeal, this court reversed the
murder conviction
finding that the trial court erred in admitting thi.s evidence.
State v. Anderson, 7th
Dist. No. 03-MA-252, 2006-Ohio-4618.
{16} Appellant's third trial was held in December 2008. This
trial resulted in
a hung jury.
{17} Appellant's fourth trial began in April 2010. However, one
of his
defense attorneys fell asleep during voir dire. Consequently,
the court declared a
mistrial.
-
-2-
{¶8} Appellant's fifth trial was held in August 2010. For the
second time, the
trial resulted in a hung jury.
{19} The trial court scheduled appellant for what would be his
sixth trial.
Appellant then filed his Motion to Dismiss Indictment and for
Discharge. Appellant
argued that to make him stand trial for a sixth time violated
his due process rights
and his protection from double jeopardy. The trial court
overruled appellant's motion
finding that double jeopardy does not bar a retrial for the same
offense after reversal
or mistrial. Appellant filed a timely appeal from this
decision.
{110} The state now alleges our decision that the order appealed
from is a
final, appealable order is in conflict with the Ohio Supreme
Court case State v.
Crago, 53 Ohio St.3d 243, 559 N.E.2d 1352 (1990) and our
application of Crago's
holding in State v. Hubbard, 135 Ohio App.3d 518, 734 N.E.2d 874
(7th Dist. 1999).
{111} In Crago, 53 Ohio St.3d at the syllabus, the Court held:
"The overruling
of a motion to dismiss on the ground of double jeopardy is not a
final appealable
order." In so holding, the court reasoned: "The denial of a
motion to dismiss a
charge on the basis of double jeopardy does not meet, for
purposes of being a final
order, any one of the three prongs of R.C. 2505.02 as set forth
therein." Id. at 244.
{112} In Hubbard, we relied on Crago in holding that the
overruling of a
motion to dismiss on Ihe grounds of double jeopardy is not an
appealable order
subject to immediate review. Hubbard, 135 Ohio App.3d at
522.
{113} The present case is distinguishable from Crago and
Hubbard. Both
Crago and Hubbard dealt solely with the issue of double jeopardy
and did not
address a due process argument. Appellant, however, based his
motion to
dismiss/discharge on two separate arguments: (1) a violation of
double jeopardy
because of the harassment associated with multiple prosecutions;
and (2) a violation
of due process because the trial process was no longer fair.
{114} Furthermore, the facts here are distinguishable. In Crago
and Hubbard,
the defendants each had one trial which resulted in a mistrial.
Before their second
trials, they each filed a motion to dismiss based on double
jeopardy. In the present
-
-3-
case however, appellant has had two trials that resulted in hung
juries, one trial
ending in a conviction that we reversed on appeal, one mistrial
chargeable to the
state, and one mistrial chargeable to the defense.
{115} Had appellant raised only a double jeopardy argument in
support of his
motion to dismiss/discharge and had he been subject to only one
trial thus far, we
would agree that Crago and Hubbard control here. But appellant's
due process
argument coupled with the unique facts of this case compel us to
reach a different
conclusion.
{116} R.C. 2505.02(B) defines a final, appealable order:
{117} "(B) An order is a final order that may be reviewed,
affirmed, modified,
or reversed, with or without retrial, when it is one of the
following:
{118} "(1) An order that affects a substantial right in an
action that in effect
determines the action and prevents a judgment;
{119} "(2) An order that affects asubstantial right made in a
special
-proceeding or upon a summary application in an action after
judgment;
{¶20} "(3) An order that vacates or sets aside a judgment or
grants a new
trial;
{¶21} "(4) An order that grants or denies a provisional remedy
and to which
both of the following apply:
{122} "(a) The order in effect determines the action with
respect to the
provisional remedy and prevents a judgment in the action in
favor of the appealing
party with respect to the provisional remedy.
{123} "(b) The appealing party would not be afforded a
meaningful or effective
remedy by an appeal following final judgment as to all
proceedings, issues, claims,
and parties in the action."
{124} R.C. 2505.02(A)(3) defines a "provisional remedy" as a
"proceeding
ancillary to an action, including, but not limited to, a
proceeding for a preliminary
injunction, attachment, discove^,r of privileged matter, or
sLippression of evidence."
-
-4-
(Emphasis added.) An order denying a motion to dismiss/discharge
would fall into
the category of provisional remedies.
{125} Furthermore, in this case, appellant would clearly be
denied a
meaningful, effective appeal on the issue of due process if he
is required to wait until
conviction before appealing. And-if _ appellant is denied an
appeal now, he will be
prevented from obtaining a judgment in his favor with respect to
his motion to
dismiss/discharge. Unlike other-appealable issues that arise
prior to trial and during
trial, such as evidentiary rulings, the violation here occurs if
appellant is required to
stand trial. The trial itself is the very thing appellant claims
that due process prohibits
in this case.{126} The Due Process Clause of the United States
Constitution provides:
"No State shall make or enforce any law which shall abridge the
privileges and
immunities of citizens of the United States; nor shall any State
deprive any person of
life, liberty, or property, without due process of law; nor deny
to any person within its
jurisdiction the equal protection of the laws."
{127} Article I, Section 16 of the Ohio Constitution, states
that every person
"shall have remedy by due course of law and shall have justice
administered without
denial or delay." (Emphasis added.)
{128} In this case, appellant has already been subject to
preparing for five
trials over a seven-year period. Should he proceed to a sixth
trial, his entire trial
process will have taken close to nine years. We believe that
fundamental fairness
and constitutional protections provide appellant a right to
appeal at this time the trial
court's ruling on his motion to dismiss/discharge.
{129} We note that our ruling herein applies strictly to the
appealability issue
as we have not yet reached the merits of this case.
{130} In that a majority of the judges of the appellate district
are unable