STATE OF OHIO v. SHERMAN ANDERSON
No. 106304
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
August 2, 2018
[Cite as State v. Anderson, 2018-Ohio-3051.]
Stewart, P.J., Celebrezze, J., and Keough, J.
JOURNAL ENTRY AND OPINION; Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-17-615343-A
Mark A. Stanton
Cuyahoga County Public Defender
Erika B. Cunliffe
Assistant Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
Christopher D. Schroeder
Kevin R. Filiatraut
Assistant County Prosecutors
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
{¶1} In 1996, defendant-appellant Sherman Anderson shot his girlfriend in the head and left her in a “persistent vegetative state.” He pleaded guilty to attempted murder. The victim died in 1998 as a result of her injuries. Nineteen years later, the state charged Anderson with murder. Citing State v. Carpenter, 68 Ohio St.3d 59, 60, 623 N.E.2d 66 (1993), Anderson filed a motion to dismiss the indictment because the state did not expressly reserve the right to file additional charges on the record at the time of his guilty plea. The court denied the motion to dismiss, finding that the state did not anticipate the 1996 plea would terminate the entire incident. Anderson appeals.
{¶2} We first address a motion to dismiss the appeal that has been referred for our consideration. The state argues that the court‘s denial of Anderson‘s motion to dismiss did not arise from a final order and that we lack jurisdiction to consider the appeal.
{¶3} The jurisdiction of a court of appeals is constitutionally limited to the review of “final” orders. See
{¶4} The general rule is that an order denying a defendant‘s motion to dismiss an indictment is an interlocutory order that is not immediately appealable. State v. Mitchell, 8th Dist. Cuyahoga No. 104314, 2017-Ohio-94, ¶ 10. This is because an order denying a defendant‘s motion to dismiss an indictment does not determine the action as required by
{¶6} In State v. Anderson, 138 Ohio St.3d 264, 2014-Ohio-542, 6 N.E.3d 23, ¶ 49, the Ohio Supreme Court held that an order denying a motion to dismiss on double-jeopardy grounds is a final order under
{¶8} With respect to the final prong of the analysis, there is no doubt that Anderson would not be afforded a meaningful review absent an interlocutory appeal. In Carpenter, the Supreme Court held:
the state cannot indict a defendant for murder after the court has accepted a negotiated guilty plea to a lesser offense and the victim later dies of injuries sustained in the crime, unless the state expressly reserves the right to file additional charges on the record at the time of the defendant‘s plea.
Carpenter, 68 Ohio St.3d at 62, 623 N.E.2d 66. This holding was premised on the notion that a plea agreement is a contract intended to terminate the prosecution. The Supreme Court reaffirmed this point in State v. Dye, 127 Ohio St.3d 357, 2010-Ohio-5728, 939 N.E.2d 1217, where it found that a guilty plea carried with it a “defendant‘s reasonable expectation that pleading guilty would end the criminal proceedings arising out of the incident * * *.” Id. at ¶ 26. Just as Anderson involved the defendant‘s right not to be tried twice, so too do Carpenter and Dye involve a defendant‘s expectation that a guilty plea would bar additional charges unless the state specifically reserved the right to file additional charges. Denying Anderson the right to an immediate appeal from the denial of his motion to dismiss the indictment and forcing him to
{¶9} Our preceding discussion of Carpenter and Dye informs the substance of Anderson‘s claim that the court erred by denying his motion to dismiss the indictment. The record does not show that at the time Anderson pleaded guilty, the state reserved the right to bring additional charges against him. The state failed to reserve the right to bring additional charges even though it knew at the time of his guilty plea that the victim‘s condition — a persistent vegetative state — would not improve in the future.
{¶10} The state argues that the court correctly interpreted Carpenter to look at a defendant‘s subjective belief that a guilty plea would terminate the prosecution. It maintains that Anderson did not meet his burden of showing that he believed his guilty plea would prohibit the state from charging him with murder in the event the victim died as a result of the injuries inflicted by Anderson.
{¶11} The state misreads Carpenter — a defendant‘s subjective expectations regarding a guilty plea are formed by the state‘s conduct. The guilty plea itself creates the expectation that it will terminate criminal proceedings and that the defendant “[cannnot] be called on to account further on any charges regarding this incident.” Carpenter, 68 Ohio St.3d at 62, 623 N.E.2d 66. The only thing that can change the defendant‘s expectation of finality in a guilty plea is the state‘s express reservation, made on the record at the time of the guilty plea, of its right to file additional charges. We very recently characterized this as an unambiguous legal proposition. State v. Jackson, 8th Dist. Cuyahoga No. 105997, 2018-Ohio-1306, ¶ 15. The court erred by denying Anderson‘s motion to dismiss the indictment.
It is ordered that appellant recover of appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
______________________________________________
MELODY J. STEWART, PRESIDING JUDGE
KATHLEEN ANN KEOUGH, J., CONCURS;
FRANK D. CELEBREZZE, JR., J., CONCURS IN JUDGMENT ONLY