State ex rel. STEFFEN v. COURT of APPEALS, 2009-2166.

• Decision Date: 03 June 2010
• Docket Number: No. 2009-2166.,2009-2166.
• Citation: 126 Ohio St.3d 405,934 N.E.2d 906,2010 Ohio 2430
• Parties: STATE ex rel. STEFFEN v. COURT OF APPEALS, FIRST APPELLATE DIST.
• Court: Ohio Supreme Court

126 Ohio St.3d 405

934 N.E.2d 906

2010 Ohio 2430

STATE ex rel. STEFFEN

v.COURT OF APPEALS, FIRST APPELLATE DIST.

No. 2009-2166.

Supreme Court of Ohio.

Submitted April 20, 2010.

Decided June 3, 2010.

Dennis C. Belli, Columbus; and Timothy Young, State Public Defender, and Randall L. Porter, Assistant Public Defender, for relator.

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummings, Assistant Prosecuting Attorney, for respondents.

PER CURIAM.

{¶ 1} This is an action for a writ of prohibition to prevent court of appeals judges from proceeding in the state's appeal from the decision of a trial court granting a motion for a new trial in a capital case. Because the court of appeals patently and unambiguously lacks jurisdiction to proceed in the appeal because it was not filed pursuant to R.C. 2945.67(A) and App.R. 5(C), we grant the requested extraordinary relief.

Facts

{¶ 2} In 1982, relator, David J. Steffen, was indicted for aggravated murder with capital specifications, rape, and aggravated burglary. The aggravated-murder charge was based on the intentional killing of Karen Range while committing or attempting to commit rape. After a jury found him guilty of all counts and recommended the death penalty, the trial court sentenced Steffen to death for the aggravated-murder conviction and to consecutive prison terms of seven to 25 years on his remaining convictions for rape and aggravated burglary. The court of appeals affirmed the convictions and sentence. State v. Steffen (Dec. 11, 1985), Hamilton App. No. C-830445, 1985 WL 4301, *18.

{¶ 3} This court affirmed the judgment of the court of appeals. State v. Steffen (1987), 31 Ohio St.3d 111, 31 OBR 273, 509 N.E.2d 383. We emphasized that Steffen's denial of the rape charge indicated lack of cooperation with law enforcement and that the evidence “leads to a compelling conclusion that a rape had occurred and that [Steffen] was the perpetrator.” Id. at 118, fn. 11.

{¶ 4} Steffen subsequently filed a petition in a federal district court for a writ of habeas corpus. During the pendency of the federal case, the Bureau of Criminal Identification and Investigation (“BCI”) conducted DNA testing of the vaginal-swab specimen taken during the victim's autopsy. DNA testing had not been available when Steffen was prosecuted. The test results eliminated him as the depositor of the semen. The federal district court then ordered the case returned to the common pleas court so that Steffen could exhaust his available state remedy for consideration of the DNA test results.

{¶ 5} In August 2006, Steffen filed a motion for leave to file a delayed motion for a new trial pursuant to Crim.R. 33 based on the newly discovered DNA test results. The state filed a response joining in Steffen's request for leave, and after the common pleas court granted him permission, Steffen filed his delayed motion for a new trial. Additional DNA testing by an outside laboratory confirmed BCI's results.

The DNA on the victim's swab specimen was later matched to the DNA of a former Hamilton County Coroner's Office employee, who confessed to abusing the victim's corpse between the time of its arrival at the county morgue and the autopsy.

{¶ 6} On February 17, 2009, the court of common pleas reduced Steffen's rape conviction to attempted rape at the state's request. The court also denied Steffen's motion for a new guilt-phase trial, but granted his request for a new penalty-phase trial. The court stated that it was granting the new penalty-phase trial “[b]ecause the jury, the trial court, and the appellate courts all based their recommendations and conclusions as to the death penalty on a finding that [Steffen] raped the victim and was lying when he said he did not.”

{¶ 7} The next day, the state filed a notice of appeal from “the February 17, 2009 decision of the trial court in which the trial court granted Steffen a New Trial as to the penalty phase of his capital murder case.” The state's notice of appeal was not accompanied by a motion for leave to appeal the trial court's ruling.

{¶ 8} On March 16, 2009, the common pleas court filed a journal entry, which specified as follows:

{¶ 9} “For reasons set forth in [the court's] February 17, 2009 decision, the amended motion for a new trial is DENIED as to the guilt phase proceedings, the verdict for Count Two of the indictment is MODIFIED from rape to attempted rape, and the amended motion for a new trial is GRANTED as to the penalty phase of the proceedings.

{¶ 10} “It is therefore ORDERED that Defendant David Steffen's conviction as to Count Two of the Indictment be reduced from rape to attempted rape [R.C. 2921.03 as applied to R.C. 2907.02], a felony of the second degree; and it is further

{¶ 11} “ORDERED that the previously imposed sentence of death as to Count One of the Indictment, Aggravated Murder with Capital Specifications, and the previously imposed indefinite terms of imprisonment for Count Two, Rape be VACATED, and it is further

{¶ 12} “ORDERED that this case be scheduled for a new sentencing hearing.” (Capitalization sic.)

{¶ 13} Steffen filed a notice of cross-appeal from the portion of the decision denying his request for a new jury trial on the issue of guilt. Later, he filed a motion in the Court of Appeals for Hamilton County to dismiss the state's appeal for lack of jurisdiction because the state failed to file a motion for leave to appeal the trial court's ruling concurrently with its notice of appeal. On June 5, 2009, the state filed both a memorandum opposing the motion to dismiss and a delayed motion for leave to appeal. The court of appeals denied Steffen's motion to dismiss the state's appeal because it “was taken as a matter of right under R.C. 2945.67(A).” The court also denied as moot the state's motion for leave to appeal. After the court of appeals denied Steffen's application for reconsideration of the decision denying his dismissal motion, the state filed its merit brief.

{¶ 14} On December 1, 2009, Steffen filed this action for a writ of prohibition to prevent respondents, the judges of the court of appeals, from proceeding on the state's appeal. The judges filed a motion to dismiss the complaint, and Steffen filed a memorandum in opposition. We granted an alternative writ and issued a schedule for the submission of evidence and briefs. State ex rel. Steffen v. Court of Appeals, First Appellate Dist., 124 Ohio St.3d 1471, 2010-Ohio-354, 921 N.E.2d 244.

{¶ 15} This cause is now before the court for our consideration of the merits.

Legal Analysis

Prohibition Claim

{¶ 16} To be entitled to the requested writ of prohibition, Steffen must establish that (1) the court of appeals judges are about to exercise judicial power, (2) the exercise of that power is unauthorized by law, and (3) denying the writ will 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 judges have exercised and are continuing to exercise judicial power in the underlying criminal case by denying Steffen's motion to dismiss the state's appeal and by proceeding in the appeal.

{¶ 17} 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. The dispositive issue is thus whether the court of appeals judges patently and unambiguously lack jurisdiction over the state's pending appeal.

Patent and Unambiguous Lack of Jurisdiction

{¶ 18} 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 courts of record inferior to the courts of appeals within the district.” (Emphasis added.) We have interpreted this constitutional provision to mean that “the state has no absolute right of appeal in a criminal matter unless specifically granted such right by statute.” State v. Fisher (1988), 35 Ohio St.3d 22, 24, 517 N.E.2d 911.

{¶ 19} The state's right to appeal in criminal cases is governed by R.C. 2945.67(A), which provides:

{¶ 20} “A prosecuting attorney * * * may appeal as a matter of right any decision of a trial court in a criminal case * * * which decision grants a motion to dismiss all or any part of an indictment, complaint, or information, a motion to suppress evidence, or a motion for the return of seized property or grants post conviction relief pursuant to sections 2953.21 to 2953.24 of the Revised Code, and may appeal by leave of the court to which the appeal is taken any other decision, except the final verdict, of the trial court in a criminal case * * *.”

{¶ 21} As we recently observed, “[w]hile R.C. 2505.03 generally provides that every final order or judgment may be reviewed on appeal, R.C. 2945.67(A) specifically governs appeals by the state in criminal and juvenile delinquency proceedings. It provides that the state may appeal as of right an order that (1) grants a motion to dismiss all or any part of an indictment, complaint, or information, (2) grants a motion to suppress evidence, (3) grants a motion for the return of seized property, and (4) grants postconviction relief. It further provides that with the exception of final verdicts, the state may appeal any other decision in a criminal or juvenile delinquency proceeding by leave of the appellate court.” (Emphasis sic.) In re A.J.S., 120 Ohio St.3d 185, 2008-Ohio-5307, 897 N.E.2d 629, ¶ 30.

{¶ 22} The court of appeals judges ruled that the court has jurisdiction over the state's appeal because the appeal is a...