State v. JonesState v. Jones
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Appellate procedure -- Court of appeals does not have original jurisdiction to grant a motion for a new trial -- Criminal defendant must suffer the consequences of nonproduction of an appellate record where such nonproduction is caused by his own actions -- Trial court should hold evidentiary hearing to determine whether criminal defendant is substantially responsible for the absence of the record.
On September 30, 1981, Cleve Jones was indicted on three counts of rape (
On January 29, 1982, Jones was sentenced to seven to twenty-five years’ imprisonment on each of the first five counts and five to fifteen years for felonious assault. All terms were to run concurrently.
In early February 1982, the presiding judge continued Jones‘s bond during the pendency of his appeal and appointed Fred Middleton as counsel. However, no appeal was ever filed on Jones‘s behalf. The record is silent as to why an appeal was not filed by Mr. Middleton.
On July 28, 1984, a capias was requested for Jones. It was not until June 17, 1987, that the capias was issued.
On September 5, 1990, Jones was returned to custody pursuant to the capias. Jones began serving the original sentence on September 11, 1990.
On October 6, 1992, Jones filed a motion for delayed appeal. Jones provided the following reason for his failure to perfect his appeal of right within thirty days, as required by
In order to provide the court of appeals with the trial transcript as required by
Pursuant to
The state opposed Jones‘s motion for a new trial. The state argued that all sources had not been exhausted in attempting to settle the 9(C) record and, more important, that Jones should not benefit from a new trial because he was responsible for the delay in the appeal process.
On April 7, 1993, the trial court denied Jones‘s motion for a new trial. The journal entry of the court of common pleas read as follows: “Hearing had on appellant‘s motion for a new trial and request for settlement of Rule 9(C) record for appeal, (CA 64481). Motion for new trial denied. Court determines that it cannot settle Rule 9(C) statement. The court expressly incorporates the hearing record and determinations made by the court therein in lieu of a written opinion.”
On April 19, 1993, Jones filed what was styled a “motion for new trial” in the Eighth District Court of Appeals. The motion for a new trial was, in effect, an appeal from the trial court‘s failure to grant a new trial. The actual nature of the pleading is obvious from the language in Jones‘s brief in support of his appeal: “appellant requests that this court reverse the decision of the trial court denying appellant‘s motion for a new trial, and remand this case to the trial court with an order that a new trial be held.”
The state opposed Jones‘s motion on two grounds: (1) the appellate court lacked original jurisdiction to order a new trial in an inferior tribunal; and (2) Jones‘s own misconduct
On August 2, 1993, the court of appeals granted Jones‘s motion by journal entry. The entry read as follows: “Motion by appellant for new trial is granted per State v. Polk (March 7, 1991), Cuyahoga App. No. 57511, unreported, and remanded. The appeal is reversed.” The state of Ohio appealed.
This cause is now before this court upon the allowance of a motion for leave to appeal.
Stephanie Tubbs Jones, Cuyahoga County Prosecuting Attorney, and Karen L. Johnson, Assistant Prosecuting Attorney, for appellant.
James A. Draper, Cuyahoga County Public Defender, and Kenneth I. Sondik, Assistant Public Defender, for appellee.
Lee Fisher, Attorney General, Richard A. Cordray, State Solicitor, and Simon B. Karas, Deputy Chief Counsel, urging reversal for amicus curiae, Attorney General Lee Fisher.
Wright, J. We adopt in large measure the posture of amicus curiae Attorney General. Amicus advances three positions: (1) the court of appeals did not have original jurisdiction to grant a motion for a new trial; (2) a criminal defendant must suffer the consequences of nonproduction of an appellate record where such nonproduction is caused by his own actions; and (3) the trial court should hold an evidentiary hearing to determine whether Jones is substantially responsible for the absence of a record in this case.
I
As we noted above, Jones‘s purported motion for a new trial was essentially an appeal of the trial court‘s denial of his motion for a new trial. As such, the court of appeals could have properly exercised jurisdiction over Jones‘s “appeal” under
Instead of acting outside its jurisdiction by granting Jones‘s purported motion for a new trial, the court of appeals, having jurisdiction over the cause pursuant to Jones‘s delayed appeal, could have properly reached the same result by remanding the cause for a new trial pursuant to
II
A criminal defendant must suffer the consequences of nonproduction of an appellate record where such nonproduction is caused by his or her own actions. In the event the defendant‘s misconduct is determined not to be the cause of the nonproduction of the appellate record, absence of the record may require reversal of the underlying conviction and the grant of a new trial. See Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197, 15 O.O.3d 218, 400 N.E.2d 384; State v. Polk (Mar. 7, 1991), Cuyahoga App. No. 57511, unreported.
The correct procedure the court of appeals could have followed in this case is found in
In Knapp, supra, the issue was whether the plaintiffs were entitled to a new trial because the court reporter was unable to transcribe portions of trial testimony necessary to properly present the assigned errors on appeal. This court held that, absent fault on the part of the appealing party, a new trial should be granted if, after all reasonable solutions are exhausted, an appellate record could not be compiled.
In Polk, supra, the indigent defendant‘s motion for a new trial was denied by the trial court, but appellate counsel was never appointed. The defendant was later granted a delayed appeal. In the interim, fire had destroyed the reporter‘s notes of the trial. The defendant and the prosecution submitted separate
The court of appeals ruled that because the trial judge
In this case, it is the state‘s position that Jones is solely responsible for the difficulty in creating the appellate record. However, this factual issue has never been resolved by the trial court. In this case, amicus and the court of appeals apparently agree that mere absence while out on bond, without any other aggravating circumstance, does not constitute defendant misconduct. If it appears that Jones is substantially responsible for the inability to produce a record, then his appeal should proceed only on such record as the trial court can settle, or only on those issues for which a factual record is unnecessary.
III
We support the position advanced by amicus that the trial court should have held an evidentiary hearing to determine whether Jones is substantially responsible for nonproduction of the record. Presently, there is inadequate evidence before the court of any wrongdoing on Jones‘s part.
On remand, the trial court should make the following determinations: the reason for Jones’ prolonged absence from the authorities; why an appeal was not taken in the case originally; what efforts the state made to rearrest Jones; what efforts Jones made to contact his attorney or the authorities, or to inquire into his status during the intervening years; and when the notes for the trial transcript were destroyed.
When the trial court determines whether Jones is responsible and whether he should suffer the consequences of nonproduction of the record, the case can proceed accordingly.
IV
We are troubled by the fact that neither the trial court nor the court of appeals complied with
Based upon the foregoing, we reverse the decision of the court of appeals, remand this cause to the trial court, and direct the trial court to hold an evidentiary hearing on the issues noted above and to proceed in accordance with this opinion.
Judgment reversed and cause remanded.
Moyer, C.J., A.W. Sweeney, Douglas and Pfeifer, JJ., concur.
Resnick and F.E. Sweeney, JJ., concur in part and dissent in part, and would reinstate the judgment of the trial court.