Case Information
*1
[Cite as
State v. Manns
,
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO
Plaintiff-Appellee
-vs-
FRED L. MANNS, JR.
Defendant-Appellant
JUDGES:
Hon. W. Scott Gwin, P.J.
Hon. Julie A. Edwards, J.
Hon. Patricia A. Delaney, J.
Case No. 11-CA-28
O P I N I O N
CHARACTER OF PROCEEDING: Criminal Appeal from Richland
County Court of Common Pleas Case No. 2008-CR-145D JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: January 20, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant JILL M. COCHRAN FRED L. MANNS, JR. PRO SE Assistant Richland County Prosecutor Inmate No. 553-795
38 South Park Avenue Richland Correctional Institution Mansfield, Ohio 44902 1001 Olivesburg Road
Mansfield, Ohio 44901 *2
Gwin, P. J.
{¶1} Defendant-appellant Fred L. Manns, Jr. appeals from the February 18, 2011 order of the Richland County Court of Common Pleas overruling his Motion for Retrial. Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE {¶2} On May 9, 2008, the Richland County Grand Jury indicted appellant on one count of receiving stolen property in violation of R.C. 2913.51(A), a felony of the fourth degree, and two counts of having weapons while under disability in violation of R.C. 2923.13(A)(3), felonies of the third degree. At his arraignment on June 3, 2008, appellant pleaded not guilty to the charges. On September 19, 2008 the jury found appellant guilty of the two charges
of having a weapon while under a disability. The jury was unable to reach a verdict as to the remaining count. Pursuant to a Sentencing Entry filed on September 23, 2008, appellant was sentenced to an aggregate sentence of ten (10) years in prison. The trial court also ordered the two guns to be forfeited to the State of Ohio. On September 25, 2008, appellee filed a Motion to Dismiss Count I of the
indictment, the receiving stolen property count, on the basis that the jury was hung on that count. The state, in its motion, stated that it did not feel the need to proceed on that count because appellant had been convicted and sentenced on the two other counts. As memorialized in a Judgment Entry filed on September 29, 2008, Count I was dismissed without prejudice.
{¶5}
Appellant filed an appeal as of right from his conviction and sentence. This
court affirmed the judgment of the trial court. See, State v. Manns , Richland App. No. 08
CA 101,
{¶6} On January 3, 2011, appellant filed a “Motion for De Novo Retrial” seeking to be retried on Count I, the receiving stolen property offense. On January 26, 2011, appellant filed an Amended Motion to Dismiss Count One with Prejudice or Set for Retrial.
{¶7} The trial court, via a Judgment Entry filed on February 18, 2011, overruled appellant’s January 3, 2011, motion. In its entry, the trial court stated, in relevant part, “The defendant now contends he is entitled to a new trial on the receiving stolen property charge. There is no such charge pending. The defendant cites no authority for his contention that the State can be compelled to re-indict and try a dismissed felony charge.”
{¶8} Appellant now raises the following assignments of error on appeal: “I. THE TRIAL COURT ERRED WHEN IT FAILED TO ORDER A NEW TRIAL OR IN THE ALTERNATIVE DISMISS THE PENDING CHARGE WITH PREJUDICE AFTER A HUNG JURY, [sic.] AS A RESULT OF THIS ERROR MR. MANNS JUDGMENT IS NON FINAL. “II. THE FIFTH DISTRICT COURT OF APPEALS LACKED
JURISDICTION WHEN IT AFFIRMED MR. MANNS CONVICTION IN RICHLAND COUNTY CASE NO. 08-CR-145D, AFTER THE JURY WAS HUNG ON COUNT ONE; RECEIVING STOLEN PROPERTY THEREBY, RENDERING THE JUDGMENT OF CONVICTION NON FINAL AND UNAPPEALABLE.”
I, II {¶11} Appellant, in his two assignments of error, argues that there was no final, appealable order in this case because the trial court did not dismiss the charge of receiving stolen property with prejudice. Appellant further contends that, therefore, this Court did not have jurisdiction to review appellant’s appeal in Case No. 08 CA 101.
{¶12} Crim.R. 48 states, in relevant part,
{¶13} “(A) Dismissal by the state
{¶14} “The state may by leave of court and in open court file an entry of dismissal of an indictment, information, or complaint and the prosecution shall thereupon terminate.
{¶15} “* * *” R.C. 2941.33 provides that the prosecuting attorney may enter a nolle prosequi with leave of court on good cause shown and in open court. These provisions are essentially identical, except that R.C. 2941.33 provides that a nolle prosequi entered contrary to these provisions is void. The rule does not state the grounds for which a court may dismiss an
indictment, nor does it provide that such dismissal shall be a bar to any further
proceedings. In short, Crim.R. 48(B) does not specifically provide for dismissals with
prejudice. “The purpose of Crim.R. 48 is to maintain a defendant's right to a speedy trial,
but the rule does not alter the pre-rule Ohio practice concerning the court's inherent
power to dismiss. In our judgment, that power includes the right to dismiss with
prejudice only where it is apparent that the defendant has been denied either a
*5
constitutional or a statutory right, the violation of which would, in itself, bar prosecution.”
State v. Sutton ,
Indictment on September 25, 2006. This motion was served upon appellant’s counsel. The trial court dismissed Count I of the Indictment by Judgment Entry filed September 29, 2008. Appellant neither filed an objection in the trial court to the dismissal nor appealed the trial court’s dismissal entry. Nor did appellant raise an objection or demand to be re-tried on the receiving stolen property count of the indictment during his sentencing hearing that took place before the trial court on September 22, 2008. Pursuant to the Sentencing Entry, filed September 23, 2008, appellant was sentenced upon the two counts that the jury had returned verdicts of guilty. The trial court sentenced appellant to an aggregate prison term of ten years. Appellant appealed and we affirmed his conviction and sentence. “Final judgment in a criminal case means sentence. The sentence is the
judgment. Miller v. Aderhold , 288 U.S. 206, 210, 53 S.Ct. 325, 77 L.Ed. 702; Hill v.
United States ex rel. Wampler ,
{¶20}
“A judgment of conviction is a final order subject to appeal under R.C.
2505.02 when it sets forth (1) the fact of the conviction, (2) the sentence, (3) the judge's
signature, and (4) the time stamp indicating the entry upon the journal by the clerk.
(Crim.R.32(C), explained; State v. Baker, 119 Ohio St.3d 197,
{¶21} Because appellant’s September 23, 2008 Sentencing Entry compiled with Crim. R.32(C), appellant stands convicted of a felony unless the judgment against him is vacated or reversed. Berman v. United States at 213.
{¶22}
A retrial following a hung jury does not violate the Double Jeopardy
Clause. Richardson v. United State (1984), 468 U.S. 317, 324, 104 S.Ct. 3081, 82
L.Ed.2d 248(1984); Accord, State v. Lovejoy , 79 Ohio St.3d 440, 683 N.E.2d 1112,
{¶23}
To allow the state to simply re-instate the former case or the former
indictment “would allow a prosecutor to keep a defendant perpetually indicted, without
any idea concerning, or control over, when the matter would be resolved.” State v.
Dinkelacker ,
North Carolina [
{¶26} “The Supreme Court reversed and held that the state could not reinstate the indictment against the defendant. ‘By indefinitely prolonging this oppression, as well as the ‘anxiety and concern accompanying public accusation,’ the criminal procedure condoned in this case by the Supreme Court of North Carolina clearly denies the petitioner the right to a speedy trial which we hold is guaranteed to him by the Sixth Amendment of the Constitution of the United States.’” [Id. at 222]. State v. Dinkelacker at ¶16-17. Courts in Ohio have previously determined that an abandonment of a
proceeding, such as a nolle prosequi, constitutes a basis for which to bring a malicious
prosecution claim. Douglas v. Allen (1897),
the accused in that proceeding, and therefore no opportunity to establish in that proceeding the existence of probable cause for the prosecution. True, a nolle may be entered at a time when it will not preclude another prosecution for the same offense, but the institution of another prosecution requires a new complaint or indictment, and becomes a new proceeding. The former one, after the discharge of the defendant *8 therefrom, cannot be reinstated or revived and proceeded with; or if it could be, unless that is done within the proper time, the prosecution would nevertheless be ended.” Id. at 159-160.
{¶29} Thus, the Ohio Supreme Court stated, in dicta, that a prosecution ended by a nolle prosequi has the same effect as one ended by an acquittal—that “there can thereafter be no conviction of the accused in that proceeding .” Id. at 159. (Emphasis added).
{¶30} When a criminal case is dismissed, it is over—except in the case where the dismissal is appealed. This dismissal was not appealed in appellant’s case.
{¶31}
The Constitution of Ohio requires, except in rare cases, that felonies be
prosecuted by indictment. Constitution, Article I, Section 10. “There can be no trial,
conviction, or punishment for a crime without a formal and sufficient accusation. In the
absence thereof the court acquires no jurisdiction whatever, and if it assumes
jurisdiction, a trial and conviction are a nullity.” Stewart v. State (1932), 41 Ohio App.
351,
would necessitate a new indictment and therefore constitute a new proceeding. Once the trial court disposed of Count I by judgment entry filed September 29, 2008 appellant's Judgment Entry of Conviction and Sentence filed September 23, 2008 became a final appealable order. Based upon the foregoing, we find that the Judgment Entry of Conviction
and Sentence filed September 23, 2008 was a final appealable order. Thus, this Court
*9
properly exercised jurisdiction in hearing and deciding appellant’s appeal as of right.
See, State v. Manns , 5 th Dist. No. 08 CA 101,
overruled. The judgment of the Richland County Court of Common Pleas is affirmed.
By: Gwin, P.J. and
Delaney, J. concur;
Edwards, J., dissents
______________________________ HON. W. SCOTT GWIN ______________________________ HON. JULIE A. EDWARDS ______________________________ HON. PATRICIA A. DELANEY *10 EDWARDS, J., DISSENTING OPINION
{¶36} I respectfully disagree with the majority’s analysis and disposition of appellant’s two assignments of error. For the following reasons, I would find there is no final, appealable order in this case and that this Court did not have jurisdiction to hear the original appeal.
{¶37}
Baker, supra., and its progeny deal with what needs to be set forth in
entries dealing with convictions in order to make those entries final, appealable orders.
Pursuant to State ex. Rel. Davis v. Cuyahoga County Court of Common Please, 127
Ohio St.3d 29,
{¶38} “In Robinson, supra at ¶ 11, this Court stated:
{¶39} “‘In the case of a hung jury, jeopardy does not terminate when a hung jury is discharged, rather the case against the defendant remains pending until the remaining charge is either retried and/or dismissed with prejudice. State v. Cole, Cuyahoga App. No. 88722, 2007–Ohio–3076. Furthermore, although a dismissal of the hung jury charge may be contemplated on the record, unless the dismissal is documented by a signed journal entry which is filed with the court, the order of the trial court remains interlocutory and is not a final, appealable order”, citing Huntsman, supra.’” Id at paragraphs 10-12. (Emphasis added).
{¶40} In the case sub judice, as is stated above, the jury was hung on the charge of receiving stolen property. The trial court, pursuant to a Judgment Entry filed on September 29, 2008, dismissed the same without prejudice. However, because the charge was never dismissed with prejudice, there was no final appealable order. I believe that this Court, therefore, did not have jurisdiction to hear appellant’s original appeal.
{¶41}
The next issue for determination is the affect of our original decision on an
unchallenged, non-final appealable order. This Court addressed such issue in State v.
Griffin, 5 th Dist. No. 09CA21,
{¶42} “For this analysis, we find a series of cases, one of which is now pending before the Supreme Court of Ohio, on the issue of resentencing.
{¶43}
“In State v. Fischer,
{¶44}
“Prior to the Fischer decision, the Supreme Court of Ohio ruled in a writ of
mandamus and/or procedendo action that a judgment entry that failed to comply with
Crim.R. 32(C) was not a final appealable order and mandamus and procedendo would
lie relative to an order of resentencing. State ex rel, Culgan v. Medina County Court of Common Pleas,
*13 {¶45} “Seizing on the language of Culgan, the Ninth District revisited its decision in Fischer and found in a postrelease control resentencing, they may entertain all issues relative to the underlying conviction and/or trial:
{¶46}
“‘The implication of the Supreme Court's opinion in Culgan is that
regardless of whether a defendant has already appealed his conviction, if the order from
which the first appeal was taken is not final and appealable, he is entitled to a new
sentencing entry which can itself be appealed. Although the connection between Culgan and cases involving postrelease control has not yet been explicitly stated, the logic
inherent in recent Supreme Court cases regarding postrelease control leads to a similar
result. See Fischer,
{¶47} “What the Ninth District did in Harmon was to find that a non-final appealable order was a void judgment. The Supreme Court of Ohio in Baker and Culgan never termed a non-final appealable order as a void judgment. The issue still remains open. Can a subsequent affirmance of a conviction and sentence by an appellate court rectify a non-final appealable order?
{¶48}
“In State ex rel. Moore v. Krichbaum, Mahoning App. No. 09 MA 201,
{¶49} “‘In Culgan, the Supreme Court of Ohio considered whether a defendant was entitled to writs of mandamus and procedendo compelling the trial court to enter a judgment on his convictions that complied with Crim.R. 32(C), even though his convictions in 2002 had been previously reviewed and affirmed on a direct appeal. Culgan at ¶ 3. The Ohio Supreme Court concluded that the defendant was entitled to a new sentencing entry irrespective of prior appellate review, because the original sentencing entry did not constitute a final appealable order. Id. at ¶ 10-11, 895 N.E.2d 805. Because the Ohio Supreme Court applied Baker to Culgan's petitions even though Culgan's convictions and direct appeal had been finalized prior to the decision in Baker, this Court can no longer hold that Baker may only be applied prospectively. We therefore conclude that we are obligated to apply Baker retrospectively.’”
{¶50} “Reluctantly, we reach the same conclusion as our brethren from the Seventh District…” Id at paragraphs 25-34.
{¶51}
The Ohio Supreme Court, in State v. Griffin, 127 Ohio St.3d 266, 2010-
Ohio-5948, 938 N.E.2d 1036, vacated the judgment of this Court and remanded the
matter to this Court for application of State v. Ketterer ,
{¶52} I acknowledge that Griffin was a Baker type non-final appealable order in that the entry of conviction was not complete. It did not deal with the situation we have *15 in the case sub judice wherein one of the charges was not finally disposed of. However, I would find Griffin analogous in that it deals with a non-final appealable order and the validity of a decision by the Court of Appeals in ruling on a non-final appealable order.
{¶53} Based on the foregoing, I would find that there is no final, appealable order in this case and that this Court did not have jurisdiction to hear the original appeal. I would, therefore, sustain both assignments of error and reverse and remand this matter.
___________________________________ Judge Julie A. Edwards
JAE/dr
IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
: -vs- : JUDGMENT ENTRY
:
FRED L. MANNS, JR. :
: Defendant-Appellant : CASE NO. 11-CA-28 For the reasons stated in our accompanying Memorandum-Opinion on file, the judgment of the Richland County Court of Common Pleas is affirmed. Costs assessed to appellant.
_________________________________ HON. W. SCOTT GWIN _________________________________ HON. JULIE A. EDWARDS _________________________________ HON. PATRICIA A. DELANEY
Notes
[1] The correct citation for the Ninth District Fischer case is