State v. Manns, Case No. 11-CA-28
| Decision Date | 23 January 2012 |
| Docket Number | Case No. 11-CA-28 |
| Citation | 2012 Ohio 234 |
| Parties | STATE OF OHIO Plaintiff-Appellee v. FRED L. MANNS, JR. Defendant-Appellant |
| Court | Ohio Court of Appeals |
JUDGES:
Hon. W. Scott Gwin, P.J.
OPINION
For Plaintiff-Appellee
JILL M. COCHRAN
For Defendant-Appellant
FRED L. MANNS, JR. PRO SE
{¶1} Defendant-appellant Fred L. Manns, Jr. appeals from the February 18, 2011 order of the Richland County Court of Common Pleas overruling his Motion for Retrial. Plaintiff-appellee is the State of Ohio.
{¶2} On May 9, 2008, the Richland County Grand Jury indicted appellant on one count of receiving stolen property in violation of R.C. 2913.51(A), a felony of the fourth degree, and two counts of having weapons while under disability in violation of R.C. 2923.13(A)(3), felonies of the third degree. At his arraignment on June 3, 2008, appellant pleaded not guilty to the charges.
{¶3} On September 19, 2008 the jury found appellant guilty of the two charges of having a weapon while under a disability. The jury was unable to reach a verdict as to the remaining count. Pursuant to a Sentencing Entry filed on September 23, 2008, appellant was sentenced to an aggregate sentence of ten (10) years in prison. The trial court also ordered the two guns to be forfeited to the State of Ohio.
{¶4} On September 25, 2008, appellee filed a Motion to Dismiss Count I of the indictment, the receiving stolen property count, on the basis that the jury was hung on that count. The state, in its motion, stated that it did not feel the need to proceed on that count because appellant had been convicted and sentenced on the two other counts. As memorialized in a Judgment Entry filed on September 29, 2008, Count I was dismissed without prejudice.
{¶5} Appellant filed an appeal as of right from his conviction and sentence. This court affirmed the judgment of the trial court. See, State v. Manns, Richland App. No. 08 CA 101, 2009-Ohio-3262, 2009 WL 1900432.
{¶6} On January 3, 2011, appellant filed a "Motion for De Novo Retrial" seeking to be retried on Count I, the receiving stolen property offense. On January 26, 2011, appellant filed an Amended Motion to Dismiss Count One with Prejudice or Set for Retrial.
{¶7} The trial court, via a Judgment Entry filed on February 18, 2011, overruled appellant's January 3, 2011, motion. In its entry, the trial court stated, in relevant part,
{¶8} Appellant now raises the following assignments of error on appeal:
{¶9} "I. THE TRIAL COURT ERRED WHEN IT FAILED TO ORDER A NEW TRIAL OR IN THE ALTERNATIVE DISMISS THE PENDING CHARGE WITH PREJUDICE AFTER A HUNG JURY, [sic.] AS A RESULT OF THIS ERROR MR. MANNS JUDGMENT IS NON FINAL.
{¶10}
I, II
{¶11} Appellant, in his two assignments of error, argues that there was no final, appealable order in this case because the trial court did not dismiss the charge of receiving stolen property with prejudice. Appellant further contends that, therefore, this Court did not have jurisdiction to review appellant's appeal in Case No. 08 CA 101.
{¶12} Crim.R. 48 states, in relevant part,
{¶13} "(A) Dismissal by the state
{¶14} "The state may by leave of court and in open court file an entry of dismissal of an indictment, information, or complaint and the prosecution shall thereupon terminate.
{¶15} "* * *"
{¶16} R.C. 2941.33 provides that the prosecuting attorney may enter a nolle prosequi with leave of court on good cause shown and in open court. These provisions are essentially identical, except that R.C. 2941.33 provides that a nolle prosequi entered contrary to these provisions is void.
{¶17} The rule does not state the grounds for which a court may dismiss an indictment, nor does it provide that such dismissal shall be a bar to any further proceedings. In short, Crim.R. 48(B) does not specifically provide for dismissals with prejudice. State v. Sutton, 64 Ohio App.2d 105, 108, 411 N.E.2d 818 (9th Dist.).
{¶18} In the case at bar, the state filed a motion to dismiss Count I of the Indictment on September 25, 2006. This motion was served upon appellant's counsel. The trial court dismissed Count I of the Indictment by Judgment Entry filed September 29, 2008. Appellant neither filed an objection in the trial court to the dismissal nor appealed the trial court's dismissal entry. Nor did appellant raise an objection or demand to be re-tried on the receiving stolen property count of the indictment during his sentencing hearing that took place before the trial court on September 22, 2008. Pursuant to the Sentencing Entry, filed September 23, 2008, appellant was sentenced upon the two counts that the jury had returned verdicts of guilty. The trial court sentenced appellant to an aggregate prison term of ten years. Appellant appealed and we affirmed his conviction and sentence.
{¶19} Berman v. United States, 302 U.S. 211,212-213, 58 S.Ct. 164, 82 L.Ed.2d 204 (1937). In State v. Lester, 2011-Ohio-5204, 2011 WL 4862414 (Ohio) the Ohio Supreme Court held,
{¶20} Id. at paragraph 1 of the syllabus.
{¶21} Because appellant's September 23, 2008 Sentencing Entry compiled with Crim. R.32(C), appellant stands convicted of a felony unless the judgment against him is vacated or reversed. Berman v. United States at 213.
{¶22} A retrial following a hung jury does not violate the Double Jeopardy Clause. Richardson v. United State (1984), 468 U.S. 317, 324, 104 S.Ct. 3081, 82 L.Ed.2d 248(1984); Accord, State v. Lovejoy, 79 Ohio St.3d 440, 683 N.E.2d 1112, 1997-Ohio-371 at paragraph two of the syllabus. However, in the case at bar, the state did not seek to retry appellant upon the count of the indictment upon which the jury was hung; rather as previously noted, the state dismissed Count I of the indictment.
{¶23} To allow the state to simply re-instate the former case or the former indictment "would allow a prosecutor to keep a defendant perpetually indicted, without any idea concerning, or control over, when the matter would be resolved." State v. Dinkelacker, 156 Ohio App.3d 595, 2004-Ohio-1695, 807 N.E.2d 967, ¶15 (1st Dist.).
{¶24} In Dinkelacker the First District Court of Appeals further noted,
{¶25} "The United States Supreme Court addressed such a concern in Klopfer v. North Carolina [368 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 211(1967)]. In Klopfer, the stateprosecutor, under a 'nolle prosequi with leave,' attempted to suspend proceedings on a criminal indictment indefinitely. The 'nolle prosequi with leave' permitted the prosecutor to activate the charges at any time and to have the case restored for trial 'without further order' of the court. [Id. at 214]. (The obsolete term "nolle" is now a dismissal.) The charges against the defendant were thus never dismissed or discharged in any real sense. [Id. at 216].
{¶26} [Id. at 222]. State v. Dinkelacker at ¶16-17.
{¶27} Courts in Ohio have previously determined that an abandonment of a proceeding, such as a nolle prosequi, constitutes a basis for which to bring a malicious prosecution claim. Douglas v. Allen (1897), 56 Ohio St. 156, 46 N.E. 707. Relevant to the case at bar, the Ohio Supreme Court in Douglas noted,
{¶28} ...
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