2019 Ohio 2394
Ohio Ct. App.2019Background
- Defendant Nasser Y. Hamad was convicted in Trumbull County Court of Common Pleas; he was sentenced and filed a timely appeal; the State filed a cross-appeal.
- The State’s cross-appeal challenged: (1) jury instructions on self-defense and (2) the trial court’s merger of certain attempted aggravated murder counts for sentencing.
- Statutory framework: R.C. 2945.67 governs when the State may appeal criminal-court decisions; R.C. 2953.08 governs appeals of felony sentences by the prosecuting attorney.
- Under R.C. 2945.67(A) the State must obtain leave of the appellate court to appeal “any other decision, except the final verdict,” following App.R. 5(C).
- The State did not seek leave to appeal the jury-instruction issue; the State did invoke R.C. 2953.08(B)(2) (appeal as of right that sentence is “contrary to law”) for the merger/allied-offenses sentencing issue.
- Hamad died after sentencing; the court considered whether that affects jurisdiction or mootness of the State’s cross-appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the State may challenge the trial court’s self-defense jury instruction without seeking leave under R.C. 2945.67(A) | The State asserted error in the instruction and included it in its cross-appeal | Hamad contended the State failed to obtain required leave so the court lacks jurisdiction | Dismissed for lack of jurisdiction: the State needed to seek leave and did not, so court cannot review the instruction |
| Whether the State may appeal the trial court’s merger of attempted aggravated murder counts as a felony sentence "contrary to law" under R.C. 2953.08(B)(2) | The State argued the trial court’s merger created an allied-offenses sentencing error and that this is appealable as of right under R.C. 2953.08(B)(2) | Hamad argued various defenses; separately, his death may affect relief available | Although R.C. 2953.08(B)(2) would normally permit review of allied-offenses sentencing error, Hamad’s death renders the claim moot and the court dismissed for lack of jurisdiction |
Key Cases Cited
- State v. Wilson, 129 Ohio St.3d 214 (2011) (an allied-offenses sentencing error makes a sentence "contrary to law" and is reviewable)
- State v. Saxon, 109 Ohio St.3d 176 (2006) (statutory framework for appellate review of felony sentences)
- State v. Wallace, 43 Ohio St.2d 1 (1975) (procedural rules govern when the State may appeal and appellate jurisdiction)