State v. Anderson, CASE NO. 11-MA-43
| Decision Date | 25 September 2012 |
| Docket Number | CASE NO. 11-MA-43 |
| Citation | 2012 Ohio 4390 |
| Parties | STATE OF OHIO, PLAINTIFF-APPELLEE, v. CHRISTOPHER L. ANDERSON, DEFENDANT-APPELLANT. |
| Court | Ohio Court of Appeals |
OPINIONS UPON
EN BANCCONSIDERATION
CHARACTER OF PROCEEDINGS:
Criminal Appeal from Court of Common
Pleas of Mahoning County, Ohio
In that a majority of the judges are
unable to concur, the decision of the
original panel shall remain. App.R.
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite
Hon. Mary DeGenaro
{¶1} 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.
{¶2} We now proceed with a determination solely as to the appealability of the trial court's judgment overruling appellant's motion to dismiss/discharge.
{¶3} Appellant has had five trials thus far.
{¶4} 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 this evidence. State v. Anderson, 7th Dist. No. 03-MA-252, 2006-Ohio-4618.
{¶6} Appellant's third trial was held in December 2008. This trial resulted in a hung jury.
{¶7} 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.
{¶8} Appellant's fifth trial was held in August 2010. For the second time, the trial resulted in a hung jury.
{¶9} 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.
{¶10} 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 State v. Hubbard, 135 Ohio App.3d 518, 734 N.E.2d 874 (7th Dist. 1999).
{¶11} 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.
{¶12} In Hubbard, we relied on Crago in holding that 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.
{¶13} 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.
{¶14} 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 presentcase 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.
{¶15} 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.
{¶16} R.C. 2505.02(B) defines a final, appealable order:
{¶17} "(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:
{¶18} "(1) An order that affects a substantial right in an action that in effect determines the action and prevents a judgment;
{¶19} "(2) An order that affects a substantial 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:
{¶22} "(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.
{¶23} "(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."
{¶24} 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, discovery of privileged matter, or suppression of evidence."(Emphasis added.) An order denying a motion to dismiss/discharge would fall into the category of provisional remedies.
{¶25} 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.
{¶26} 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."
{¶27} 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.)
{¶28} 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.
{¶29} We note that our ruling herein applies strictly to the appealability issue as we have not yet reached the merits of this case.
{¶30} In that a majority of the judges of the appellate district are unable toconcur in a decision, the decision of the original order shall remain. App.R. 26(A)(2)(d).
DeGenaro, J. concurs with attached concurring opinion.
writing separately representing two out of four votes upon en banc review
{¶31} I add my voice to the call of colleagues from other appellate districts and Justices Lanzinger and McGee-Brown in State v. Gunnell, Slip Opinion No. 2012-Ohio-3236, (July 19, 2012), for the Ohio Supreme Court to revisit State v. Crago, 53 Ohio St.3d 243, 559 N.E.2d 1353 (1990), which held that the denial of a motion to dismiss on double jeopardy grounds is not a final appealable order. Subsequent to Crago, in Wenzel v. Enright, 68 Ohio St.3d 63, 623 N.E.2d 69 (1993), the court held that such a denial is not subject to judicial review through a petition for habeas corpus, prohibition, or any other original writ, thus the only remaining remedy under Ohio law to vindicate this violation is a direct appeal after trial. Anderson correctly argues that this not only violates the Double Jeopardy Clause but also the Due Process Clause; both of which constitute a "substantial right" as contemplated by R.C. 2505.02. That statute goes on to provide that where an order in...
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