2019 Ohio 2736
Ohio Ct. App.2019Background
- In 2014 Dickerson was indicted for crimes (rape, kidnapping, complicity) alleged to have occurred in July 1994; a key witness, Jerry Polivka, subsequently died.
- Dickerson moved to dismiss for preindictment delay in Nov. 2014; the trial court denied the motion as untimely.
- On direct appeal this court (Dickerson I) found the motion denial was not an abuse but held counsel ineffective for failing to file timely the motion and remanded to vacate convictions.
- After the Ohio Supreme Court vacated that decision and the case was remanded for application of State v. Jones, this court (Dickerson II) again found counsel deficient and concluded there was a reasonable probability the preindictment-delay claim would have succeeded, and reversed.
- On remand the trial court declined to dismiss on law-of-the-case grounds, held an evidentiary hearing, and denied Dickerson’s renewed motion to dismiss for preindictment delay for failure to show actual prejudice from the deceased witness.
- Dickerson appealed the denial; this panel dismissed the appeal for lack of jurisdiction because the denial of a motion to dismiss for preindictment delay is an interlocutory (non-final) order not immediately appealable under R.C. 2505.02(B).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether denial of a motion to dismiss for preindictment delay is a final, appealable order | State: denial is interlocutory; Dickerson can obtain meaningful review after final judgment | Dickerson: denial is appealable because it decides a provisional remedy and waiting would deny meaningful relief and waste resources | Denied appeal: order is interlocutory and not a final, appealable order under R.C. 2505.02(B) |
| Whether trial court erred by denying dismissal on law-of-the-case after appellate reversal for ineffective assistance | State: trial court must decide motion on the merits | Dickerson: law of the case required dismissal given appellate findings | Trial court correctly heard motion; law-of-the-case did not mandate dismissal; denial permitted and review must await final judgment |
Key Cases Cited
- State v. Luck, 15 Ohio St.3d 150 (Ohio 1984) (loss of witness who was present with defendant may demonstrate actual prejudice for preindictment delay)
- State v. Jones, 148 Ohio St.3d 167 (Ohio 2016) (standards governing review of claims related to preindictment delay and counsel performance)
- State v. Chambliss, 128 Ohio St.3d 507 (Ohio 2011) (pretrial disqualification of retained counsel is immediately appealable because only immediate review protects the defendant’s right to counsel of choice)
- State v. Anderson, 138 Ohio St.3d 264 (Ohio 2014) (denial of motion to dismiss on double-jeopardy grounds is a final, appealable order under R.C. 2505.02(B)(4))
- State v. Carpenter, 68 Ohio St.3d 59 (Ohio 1994) (guilty plea to lesser offense can bar later prosecution for greater offense absent express reservation by the state)