THE STATE EX REL. STEFFEN v. JUDGES OF THE COURT OF APPEALS FOR THE FIRST APPELLATE DISTRICT.
No. 2009-2166
Supreme Court of Ohio
Submitted April 20, 2010—Decided June 3, 2010
126 Ohio St.3d 405, 2010-Ohio-2430
{1} This is аn 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 tо
Facts
{12} 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.
{13} 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.
{14} Steffen subsequently filed a petition in a federal district court for a writ of habeas corpus. During the pendency of the federal case, thе 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
{15} 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 сonfirmed 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.
{16} On February 17, 2009, the court of common pleas reduced Steffen’s rape conviction to attempted rape at the state’s requеst. 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 hе did not.”
{17} 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.
{18} On March 16, 2009, the common pleas court filed a journal entry, which specified as follows:
{19} “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.
{110} “It is therefore ORDERED that Defendant David Steffen’s conviction as to Count Two of the Indictment be reduced from rape to attempted rape [
{111} “ORDERED that the previously imposed sentence of death as to Count One of the Indictment, Aggravated Murder with Capital Specifications, and the
{12} “ORDERED that this case be scheduled for a new sentencing heаring.” (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
{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 Steffеn 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
Patent and Unambiguous Lack of Jurisdiction
{¶ 18}
{¶ 19} The state’s right to appeal in criminal cases is governed by
{¶ 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
{¶ 21} As we recently observed, “[w]hile
{¶ 22} The court of appeals judges ruled that the court has jurisdiction over the state’s appeal because the appeal is a matter of right under
{¶23} We need not determine whether the trial court’s modification of Steffen’s rape conviction to attempted rape constituted a dismissal in part of the
{1124} Instead, as the plain language of the state’s Fеbruary 18, 2009 notice of appeal establishes, the state appealed from the common pleas court’s decision to grant Steffen a new penalty-phase trial in his capital murder case. “Pursuant to
{25} Notably, the primary case cited by the state in support of its claim that the trial court’s decision to grant a new penalty-phase trial was appealable as a matter of right involved the state’s aрpeal from the decisions claimed to be dismissals of the indictment or the functional equivalent thereof. See State v. Craig, 116 Ohio St.3d 135, 2007-Ohio-5752, 876 N.E.2d 957, syllabus (state may appeal as a matter of right from dismissal of an indictment regardless of whether the dismissal is with or without prejudice). Similar cases are limited to the state’s appeals from decisions that either dismiss an indictment or are the functional equivalent of a dismissal of an indictment. See In re S.J., 106 Ohio St.3d 11, 2005-Ohio-3215, 829 N.E.2d 1207, ¶ 13 (trial judge’s sua sponte dismissal of murder charge constituted final, appealable order subject to state’s appeal as a matter of right because the dismissal was equivalent to granting a motion to dismiss the indictment); In re A.J.S., 120 Ohio St.3d 185, 2008-Ohio-5307, 897 N.E.2d 629, syllabus (state has appeal as a matter of right from an order denying a motion for mandatory bindover because it is the functional equivalent of a dismissal of an indictment).
{26} This precedent is distinguishable from the case at bar, where the state is manifestly not appealing from the dismissal of an indictment or its functional equivalent. And we are forbidden to add a nonexistent provision to the plain language of
{27} Therefore, the state could not appeal the decision of the common pleas court granting Steffen a new penalty-phase trial as a matter of right. It was required to timely seek leave to appeal. “A motion for leave to appeal by the state in a criminal case shall be governed by the procedural requirements of App.R. 5 and the time requirements of App.R. 4(B).” State v. Wallace (1975), 43 Ohio St.2d 1, 72 O.O.2d 1, 330 N.E.2d 697, syllabus. App.R. 5(C) provides, “When leave is sought by the prosecution from the court of appeals to appeal a judgment or order of the trial court, a motion for leave to appeal shall be filed with the court of appeals within thirty days from the entry of the judgment and order sought to be appealed * * *. Concurrently with the filing of the motion, the movant shall file with the clerk of the trial court a notice of appeal in the form prescribed by App.R. 3 and file a copy of thе notice of appeal in the court of appeals.”
{28} The state filed a motion for leave to appeal, but the motion was not filed within 30 days of the March 16 entry being appealed, and it was not filed concurrently with the state’s notice of appeal. Because the state did not comply with the requirements of App.R. 5, the court of appeals patently and unambiguоusly lacked jurisdiction over the state’s appeal. See generally State v. Mitchell, Lucas App. No. L-03-1270, 2004-Ohio-2460, 2004 WL 1088380, ¶¶ 11-12; see also State v. Tate, 179 Ohio App.3d 71, 2008-Ohio-5686, 900 N.E.2d 1018, ¶ 51.
{29} Moreover, even if the court were to consider the state’s irrelevant argument regarding the common pleas court’s modification of Steffen’s rape conviction to attempted rape, the state would still not prevail.
{130} In construing
{31} Nevertheless, the judges rely on our holding in Craig, 116 Ohio St.3d 135, 2007-Ohio-5752, 876 N.E.2d 957, to claim that the trial court’s modification of the jury verdict convicting Steffen of rape to reduce his conviction to attempted rape constituted a dismissal of the rape charge from the indictment, which authorized the state’s appeal as a matter of right under
{32} “Here, however, the juvenile court did not dismiss any charge or indictment; it merely denied the motion to transfer. In doing so, however, it prevented the state from seeking a criminal indictment to try A.J.S. as an adult. Because a juvenile court order denying a motion for mandatory bindover terminates the state’s ability to secure an indictment for the acts charged, its denial of a mandatory transfer is the functional equivalent of the dismissal of an indictment. Thus, the state properly appealed as of right.” Id.
{1133} Craig, which is cited by the judges, and S.J. do not support the state’s claimed appeal as a matter of right in the underlying criminal case because the trial court did not dismiss the rape charge or indictment either sua sponte or on motion of a рarty.
{134} Furthermore, the trial court’s modification of the jury verdict to reduce Steffen’s rape conviction to a conviction for attempted rape—following trial and after the introduction of newly discovered evidence—is not the “functional equivalent” of a dismissal of the rape charge pursuant to A.J.S. Id. at ¶ 33. A motion to dismiss an indictment tests the legal sufficiency of the indictment, regardless of thе quality or quantity of the evidence that may be introduced by either the state or the defendant. See, e.g., State v. Certain, 180 Ohio App.3d 457, 2009-Ohio-148, 905 N.E.2d 1259, ¶ 4; State v. Preztak, 181 Ohio App.3d 106, 2009-Ohio-621, 907 N.E.2d 1254, ¶ 12. These motions are generally raised prior to trial. See
Conclusion
{35} Therefore, because the state’s appeal in Steffen’s underlying criminal case did not constitute an appeal as a matter of right under
Writ granted.
PFEIFER, LUNDBERG STRATTON, O’CONNOR, O’DONNELL, and CUPP, JJ., concur.
LANZINGER, J., concurs in judgment only.
BROWN, C.J., not participating.
LANZINGER, J., concurring in judgment only.
{36} The court of appeals contends that it does not patently and unambiguously lack jurisdiction over the state’s appeal because the state has a right to appeal the trial court’s modification of the rape count to attempted rape pursuant to
{137} In any event, the state’s appeal does not concern the amendment of the rape count, but rather the decision to grant a new trial as to the penalty phase of the proceedings. This court has previously held that a decision granting a new trial in a criminal case is a final apрealable order that the state may appeal by leave of court. State v. Matthews (1998), 81 Ohio St.3d 375, 691 N.E.2d 1041, syllabus. Because the state did not seek leave to appeal, the court of appeals
Dennis C. Belli; 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.