*1
[Cite as
State v. Craig
,
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO APPEAL NO. C-160816 : STATE OF OHIO,
TRIAL NO. B-1504585 : Plaintiff-Appellee, O P I N I O N. :
vs. : STEVEN ALLEN CRAIG, : Defendant-Appellant. Criminal Appeal From: Hamilton County Court of Common Pleas Judgment Appealed From Is: Appeal Dismissed
Date of Judgment Entry on Appeal: December 13, 2017
Joseph T. Deters , Hamilton County Prosecuting Attorney, and Judith Anton Lapp , Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller , Hamilton County Public Defender, and David Hoffman , Assistant Public Defender, for Defendant-Appellant.
*2 M YERS , Judge.
{¶1}
In this opinion, we address an issue that was not addressed by the
Supreme Court of Ohio in its recent decision in
State v. Jackson
, ___ Ohio St.3d
___,
two counts of felonious assault. Craig pleaded not guilty to all counts, and the case proceeded to a jury trial. The jury returned guilty verdicts on the felonious-assault counts, but was unable to reach a verdict on the rape count. The trial court sentenced Craig on the felonious-assault counts and declared a mistrial on the rape count. The rape charge was not dismissed and remains pending. This appeal followed. Our jurisdiction is limited to the review of final orders and judgments.
Ohio Constitution, Article IV, Section 3(B)(2); R.C. 2505.03. In
Jackson
, the
Supreme Court of Ohio held that a dismissal without prejudice of a count in a
multicount indictment does not prevent the judgment of conviction on the remaining
counts from being a final, appealable order.
Jackson
at ¶ 9. The court further held
that “a judgment of conviction is a final, appealable order if it complies with Crim.R.
32(C) and
State v. Lester
, 130 Ohio St.3d 303,
not all, of the counts in the indictment. The jury was unable to reach a verdict on two
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counts of kidnapping, but found the defendant guilty of grand theft and aggravated
robbery. The trial court imposed sentence on the theft and robbery counts, and
declared a mistrial on the kidnapping counts. On the state’s motion, the court
dismissed the kidnapping counts without prejudice. On appeal, the Eighth District
held that the dismissal without prejudice rendered the judgment a nonfinal order,
and sua sponte dismissed Jackson’s appeal for lack of a final, appealable order.
State
v. Jackson
, 8th Dist. Cuyahoga No. 103035,
prejudice of a count in a multicount indictment does not prevent the judgment of
conviction on the remaining counts from being a final, appealable order where the
judgment complied with Crim.R. 32(C) and
Lester
at ¶ 14. , ___ Ohio St.3d
___,
to prevent an order in a criminal action from being a final, appealable order would effectively stay appellate review of convictions on charges for which the defendant had been found guilty and sentenced until the state either sought a new indictment or the statute of limitations for the dismissed counts expired. Id. at ¶ 15. As this
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court has explained, “A conditional dismissal in a criminal matter would allow a
prosecutor to keep a defendant perpetually indicted, without any idea concerning, or
control over, when the matter would be resolved.”
State ex rel. Flynt v. Dinkelacker
,
which the jury could not reach a verdict and sentenced the defendant on the counts
upon which the jury returned guilty verdicts. Unlike
Jackson,
however, this charge
remains pending. It has not been dismissed or otherwise resolved in any way. The
granting of a mistrial “has long been held not to be a final appealable order ‘for the
basic reason that it is not a judgment or order in favor of either of the parties which
gives finality to the case.’ ”
State v. Nixon
, 5th Dist. Richland No. 2016 CA 0008,
that an order in a criminal case is not final where the trial court fails to dispose of all
the charges that are brought against the defendant in an action.
See State v. Pippin
,
1st Dist. Hamilton No. C-150061,
jurisdiction. We stated, “Importantly, however, the trial court neglected to dispose of
four other charges against Mr. Pippin. A long line of authority tells us that a trial
court’s entry is not a ‘final order’ where the court fails to dispose of all the charges in
an action against a criminal defendant.”
Pippin
at ¶ 1. We recognized that “[a]
‘hanging charge’ prevents the conviction from being a final order under R.C.
2505.02(B) because it does not determine the action, i.e., resolve the case.”
Id.
at ¶
6, quoting
State v. Johnson
, 4th Dist. Scioto No. 14CA3660,
Ohio courts that have held that in a criminal case involving a multicount indictment,
a trial court’s order that fails to dispose of a count on which the jury failed to reach a
verdict is not a final, appealable order.
See State v. Purdin
, 4th Dist. Adams No.
11CA909,
a defendant to languish without appellate review of his conviction is not present
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where a count remains pending following the declaration of a mistrial upon the jury’s
inability to reach a verdict on the count. Constitutional speedy-trial standards of
reasonableness apply to a retrial following a mistrial because of a hung jury.
State v.
Fanning
, 1 Ohio St.3d 19, 20-21, 437 N.E.2d 583 (1982);
see State v. Echols
, 146
Ohio App.3d 81, 91, 765 N.E.2d 379 (1st Dist.2001). These standards balance the
conduct of the state and that of the defendant by considering the length of delay, the
reasons for the delay, whether the defendant has asserted her or his speedy-trial
rights, and any resulting prejudice.
Barker v. Wingo
,
which the jury failed to reach a verdict prevented the judgment of conviction on the other counts from being a final, appealable order. Without a final order, we lack jurisdiction. Therefore, we dismiss the appeal.
Appeal dismissed. M OCK , P.J., concurs.
M ILLER , J., concurs separately.
M ILLER , J., separately concurring. The majority opinion accurately cites and follows established precedent from Ohio appellate courts prohibiting a convicted criminal defendant from appealing while other charges remain pending. The rule sometimes results, as it does here, in the defendant being sent to prison, but not being permitted to appeal the convictions for which he is serving time. A particularly egregious example of such a scenario had a defendant serve over 14 years before the Supreme Court of Ohio ordered the trial court to resolve the “hanging charge.” See State ex rel. McIntyre v. Summit Cty. Court of Common Pleas , 144 Ohio St.3d 589, 2015-Ohio- *7 5343, 45 N.E.3d 1003. Because I believe Craig’s due-process rights are implicated, this case requires further analysis. I have previously expressed concerns regarding systemic issues that
can harm a defendant’s right to meaningful appellate review.
State v. McKenna
, 1st
Dist. Hamilton No. C-160683,
prompt appeal to [criminal] defendants.”
United States v. Smith,
at 209. There is a general agreement that a delay of more than one year is
presumptively prejudicial to a defendant.
United States v. Westcott
, S.D.Ohio No.
3:06-po-097,
{¶17} The reason for the delay is the second factor. Here, every continuance for the retrial has been at Craig’s request, and Craig has waived the computation of time. This factor weighs decisively against Craig. Craig has voluntarily delayed his retrial on the “hanging charge” while pursuing his appeal. Had he instead insisted on the retrial occurring timely, he likely would have been retried by now, and possibly would have a final order from which to appeal. His waiver applies to his due-process right to a prompt appeal. Accordingly, his due-process rights have not been violated. There is no occasion to visit the remaining factors. Having conducted the Smith analysis, I concur with the result. I, nevertheless, wish to express the unfortunateness of the result. Both
the defendant and the state want this appeal to be heard. In the context of this case, judicial economy would be better served by affording an opportunity to appeal. As the law exists now, there could be two trials before there is an appeal, perhaps a remand for a new trial if there was error in the initial convictions, potentially followed by a third trial and second appeal. If this appeal was allowed to go forward, then any error that might have occurred below could be avoided at the second trial— not a third. The judicial economy of the current system further decreases if there are additional hung juries. Moreover, the appetite of the parties for a retrial on the “hanging charge” might be satiated by resolution of this appeal. If we were to affirm the current convictions, then maybe the parties would decide to resolve the hanging charge by agreement. The Commission on the Rules of Practice and Procedure should
consider whether the Rules of Criminal Procedure should be amended to include a
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*9 provision equivalent to Civ.R. 54(B), which affords the ability to appeal the resolution of some claims. This would afford the parties and the trial court the discretion to permit appeals from final judgments of conviction when there are “hanging charges” as the circumstances may demand.
Please note:
The court has recorded its own entry on the date of the release of this opinion.