State ex rel. Bates v. Court of Appeals for the Sixth Appellate Dist.

• Decision Date: 27 October 2011
• Docket Number: No. 2011–1075.,2011–1075.
• Citation: 2011 -Ohio- 5456,130 Ohio St.3d 326,958 N.E.2d 162
• Parties: The STATE ex rel. BATES, Pros. Atty., v. COURT OF APPEALS FOR THE SIXTH APPELLATE DISTRICT.
• Court: Ohio Supreme Court

130 Ohio St.3d 326

2011 -Ohio- 5456

958 N.E.2d 162

The STATE ex rel. BATES, Pros. Atty.,

v.COURT OF APPEALS FOR THE SIXTH APPELLATE DISTRICT.

No. 2011–1075.

Supreme Court of Ohio.

Submitted Sept. 6, 2011.Decided Oct. 27, 2011.

Julia R. Bates, Lucas County Prosecuting Attorney, and Evy M. Jarrett, Assistant Prosecuting Attorney, for relator.

Michael DeWine, Attorney General, and Erin Butcher–Lyden and Damian W. Sikora, Assistant Attorneys General, for respondent.

PER CURIAM.

[Ohio St.3d 326] {¶ 1} This is an action for a writ of prohibition to prevent a court of appeals from proceeding with a delayed appeal from an order denying a pretrial constitutional challenge in a death-penalty case. Because the court of appeals patently and unambiguously lacks jurisdiction to proceed in the appeal when the order does not constitute a final, appealable order, we grant the writ.

Facts

{¶ 2} Relator, Anthony Belton, is charged with one count of aggravated murder with death-penalty specifications and two counts of aggravated robbery with firearm specifications in State v. Belton, Lucas Cty. C.P. No. CR 200802934. In February 2009, Belton filed a motion challenging the constitutionality of R.C. 2929.03 and Crim.R. 11(C)(3). Belton claimed that these provisions are unconstitutional because they preclude him from entering a plea of guilty without waiving his right to a jury trial during the sentencing phase of his capital case. On November 30, 2009, the common pleas court denied Belton's motion and upheld the constitutionality of R.C. 2929.03 and Crim.R. 11(C)(3).

[Ohio St.3d 327] {¶ 3} Nearly a year later, on October 25, 2010, Belton filed a “notice of intent to admit in accordance with Crim.R. 11(C)(3) and impanel a jury for determination of appropriate sentence.” Belton later moved for reconsideration of the court's denial of his motion challenging the constitutionality of R.C. 2929.03 and Crim.R. 11(C)(3), and the court denied the motion.

{¶ 4} On March 8, 2011, respondent, the Sixth District Court of Appeals, dismissed Belton's appeal from the common pleas court's denial of his motion for reconsideration because “[t]here is no such thing as a motion for reconsideration of a final judgment in a criminal case” and “appellant appealed a void judgment entry denying his motion for reconsideration.” State v. Belton, Lucas App. No. L–10–1347, 2011-Ohio-1141, 2011 WL 856975, ¶ 23, 25. In the context of that opinion, however, the court of appeals concluded that our decision in State v. Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d 48, “clearly contemplates that a constitutional challenge to Crim.R. 11(C)(3) and the corresponding statute must proceed via interlocutory appeal of a final order” and that Belton's October 25, 2010 “notice of intent to plea[d] transformed the November 30, 2009 judgment [upholding the constitutionality of Crim.R. 11(C)(3)] into a final order.” Belton at ¶ 18, 25.

{¶ 5} On April 20, 2011, Belton filed a motion in the court of appeals for leave to file a delayed appeal from the common pleas court's November 30, 2009 order upholding the constitutionality of Crim.R. 11(C)(3) and R.C. 2929.03. To support his motion, Belton relied on the language from the court of appeals' opinion dismissing his appeal from the denial of his motion for reconsideration. The state opposed Belton's motion, but on June 8, 2011, the court of appeals granted the motion.

{¶ 6} On June 24, 2011, relator, Lucas County Prosecuting Attorney Julia R. Bates, instituted this action for a writ of prohibition to prevent the court of appeals from proceeding in Belton's delayed appeal and to compel the dismissal of the appeal. On July 19, the court of appeals filed an answer in which it admitted all the pertinent factual allegations of the prosecutor's complaint.

{¶ 7} This cause is now before the court for our S.Ct.Prac.R. 10.5 determination.

Legal Analysis

S.Ct.Prac.R. 10.5 Standard

{¶ 8} We must now determine whether dismissal, an alternative writ, or a peremptory writ is appropriate. Dismissal, which the court of appeals requests in its answer, is required if it appears beyond doubt, after presuming the truth of all material factual allegations of the prosecutor's complaint and making all reasonable inferences in her favor, that she is not entitled to the requested [Ohio St.3d 328] extraordinary relief in prohibition. State ex rel. Duke Energy Ohio, Inc. v. Hamilton Cty. Court of Common Pleas, 126 Ohio St.3d 41, 2010-Ohio-2450, 930 N.E.2d 299, ¶ 13.

{¶ 9} If, however, after so construing the complaint, it appears that the prosecutor's prohibition claim may have merit, we will grant an alternative writ and issue a schedule for the presentation of evidence and briefs. State ex rel. Mason v. Burnside, 117 Ohio St.3d 1, 2007-Ohio-6754, 881 N.E.2d 224, ¶ 8.

{¶ 10} Finally, if the pertinent facts are uncontroverted and it appears beyond doubt that the prosecutor is entitled to the requested extraordinary relief in prohibition, we will grant a peremptory writ. Duke Energy at ¶ 15.

Prohibition Claim

{¶ 11} To be entitled to the requested writ of prohibition, the prosecutor must establish that (1) the court of appeals is about to exercise judicial power, (2) the exercise of that power is unauthorized by law, and (3) denying the writ would result in injury for which no other adequate remedy exists in the ordinary course of law. State ex rel. Cordray v. Marshall, 123 Ohio St.3d 229, 2009-Ohio-4986, 915 N.E.2d 633, ¶ 25. It is uncontroverted that the court of appeals is exercising judicial power by accepting jurisdiction over Belton's delayed appeal from the common pleas court's order upholding the constitutionality of Crim.R. 11(C)(3) and R.C. 2929.03.

{¶ 12} For the remaining requirements, “[i]f a lower court patently and unambiguously lacks jurisdiction to proceed in a cause, prohibition * * * will issue to prevent any future unauthorized exercise of jurisdiction and to correct the results of prior jurisdictionally unauthorized actions.” State ex rel. Mayer v. Henson, 97 Ohio St.3d 276, 2002-Ohio-6323, 779 N.E.2d 223, ¶ 12. “Where jurisdiction is patently and unambiguously lacking, relators need not establish the lack of an adequate remedy at law because the availability of alternate remedies like appeal would be immaterial.” State ex rel. Sapp v. Franklin Cty. Court of Appeals, 118 Ohio St.3d 368, 2008-Ohio-2637, 889 N.E.2d 500, ¶ 15.

{¶ 13} The dispositive issue is thus whether the court of appeals patently and unambiguously lacks jurisdiction over Belton's delayed appeal.

Patent and Unambiguous Lack of Jurisdiction

{¶ 14} Section 3(B)(2), Article IV of the Ohio Constitution establishes that courts of appeals “shall have such jurisdiction as may be provided by law to review and affirm, modify, or reverse judgments or final orders of the court of record inferior to the court of appeals within the district.” “The Ohio Rules of Appellate Procedure provide two distinct means by which a criminal defendant [Ohio St.3d 329] may appeal from a final order of a trial court.” (Emphasis added.) State v. Silsby, 119 Ohio St.3d 370, 2008-Ohio-3834, 894 N.E.2d 667, ¶ 10.

{¶ 15} Under the first method, “App.R. 3(A), which grants an appeal as of right, provides that such an appeal ‘shall be taken by filing a notice of appeal with the clerk of the trial court within the time allowed by Rule 4.’ App.R. 4(A), in turn, requires an appealing party to file within 30 days of the judgment or order appealed.” Id. at ¶ 11. Belton did not fit under this category of appeal because, assuming that the November 30, 2009 order he is appealing constitutes a final, appealable order, he did not file a notice of appeal within 30 days of its entry.

{¶ 16} Pursuant to the second method, however, “if an appealing party does not comply with App.R. 4(A), App.R. 5(A) provides for an appeal by leave of the court.” Id. at ¶ 12. “These appeals, which apply in only three classes of cases [including criminal proceedings], according to App.R. 5(A)(1), require the movant to ‘set forth the reasons for the failure of the appellant to perfect an appeal as of right.’ App.R. 5(A)(2). If a movant establishes sufficient reasons justifying the delay, the appellate court may, in its discretion, grant the motion, and the case proceeds as it would have if timely filed.” Id.

{¶ 17} The court of appeals granted Belton's motion for delayed appeal pursuant to App.R. 5(A). But App.R. 5(A) presupposes the entry of a final, appealable order by the trial court. Silsby, 119 Ohio St.3d 370, 2008-Ohio-3834, 894 N.E.2d 667, at ¶ 10; see also Gen. Acc. Ins. Co. v. Ins. Co. of N. Am. (1989), 44 Ohio St.3d 17, 20, 540 N.E.2d 266 (“It is well-established that an order must be final before it can be reviewed by an appellate court. If an order is not final, then an appellate court has no jurisdiction”); State v. Boyd (July 28, 1994), Cuyahoga App. No. 65883, 1994 WL 393717 (court of appeals dismissed a criminal defendant's delayed appeal for lack of a final, appealable order).

{¶ 18} R.C. 2505.02 sets forth several types of final orders that may be appealed. The potentially pertinent categories here are those specified in R.C. 2505.02(B)(1), (2), and (4). These provisions provide:

{¶ 19} “(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:

{¶ 20} “(1) An order that affects a substantial right in an action that in effect determines the action and prevents a judgment;

{¶ 21} “(2) An order that affects a substantial right made in a special proceeding or upon a summary application in an action after judgment;

{¶ 22} “ * * *

{¶ 23} “(4) An order that grants or denies a provisional remedy and to which both of the following apply:

[Ohio St.3d 330] {¶ 24} “(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...