THE STATE OF OHIO, APPELLANT, v. ROSS, APPELLEE.
No. 2009-1619
Supreme Court of Ohio
Submitted September 15, 2010—Decided December 28, 2010.
128 Ohio St.3d 283, 2010-Ohio-6282
CUPP, J.
{¶ 1} This appeal presents the issue of whether a trial court, having denied a timely filed
{¶ 2} In this case, the trial court denied appellee Denny Ross‘s timely filed motion for acquittal pursuant to
I. Procedural History
{¶ 3} In 1999, a Summit County grand jury indicted Denny Ross for the kidnapping, rape, murder, and aggravated murder of Hanna Hill and for tamper-
{¶ 4} Before the jury trial concluded, the trial judge granted a mistrial because of juror misconduct. The jury was discharged on October 28, 2000. The trial court then discovered that the jury had filled out some of the verdict forms to acquit (with regard to the charges of aggravated murder, murder, and rape), but the court did not accept those verdicts because the jury already had been discharged.
{¶ 5} Within 14 days of the trial court‘s discharge of the jury, Ross renewed his motion for acquittal, under
{¶ 6} On September 10, 2003, after the court of appeals’ decision and before the federal courts’ final resolution of Ross‘s separate challenge to the mistrial in federal habeas corpus proceedings, the common pleas court in a one-page order denied Rоss‘s motions for acquittal and to perfect the jury verdicts and scheduled the case for trial on November 17, 2003.
{¶ 8} On November 6, 2003, Ross filed a supplemental memorandum in support of his renewed motion for judgment of acquittal pursuant to
{¶ 9} The trial court hеld a hearing on Ross‘s motions, including his renewed motion for acquittal, on November 12, 2003. At that hearing, and in a written response to Ross‘s renewed motion, the state objected to the trial court‘s consideration of Ross‘s renewed motion on the ground that it was filed well after the 14-day deadline for such motions in
{¶ 10} The state filed both an appeal as of right and a motion for leave to аppeal. In the motion, the state sought leave to appeal the judgment entry “granting Defendant‘s Motion to Reconsider the court‘s Previous Denial of Defendant‘s Criminal Rule 29 Motion for Judgment of Acquittal, and specifically granting the Defendant Judgment of Acquittal of the offense of Rape and the
{¶ 11} After the federal appellate court rejected Ross‘s double-jeopardy claims in his habeas petition, the Ninth District Court of Appeals considered the state‘s appeal of the order reconsidering denial of Ross‘s acquittal motion. The court of appeals held that the trial court‘s initial denial of Ross‘s motion for acquittal under
II. Analysis
{¶ 12} This appeal requires us to determine whether a trial court may reconsider a timely made, but previously denied, motion for acquittal pursuant to
A
{¶ 13} The first question presented in this appeal is whether the trial court‘s order purporting to reconsider and grant Ross an acquittal on the rape charge and related death-penalty specification is an order from which the state may appeal pursuant to
{¶ 14} “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 аll 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 2953.21 to 2953.24 of the Revised Code, and may appeal by leave of the court to which the appeal is taken any other decision, except the final verdict, of the trial court in a criminal case.” (Emphasis added.)
{¶ 15} In addition to the orders that the statute specifies are appealable as of right,
{¶ 16} In State ex rel. Yates v. Court of Appeals for Montgomery Cty. (1987), 32 Ohio St.3d 30, 512 N.E.2d 343, syllabus, we held that a judgment of acquittal entered by the trial court pursuant to
{¶ 17} In Yates, this court granted a writ of prohibition to prevent the court of appeals from exercising jurisdiction over the state‘s attempted appeal of the acquittal. Because the appellate court was patently and unambiguously “without jurisdiction to act” to consider the state‘s appeal, the availability of a remedy by appeal did not prevent issuance of a writ of prohibition. See id. at 33.
{¶ 18} Among orders that are included within “any other decision, except the final verdict,” and which the state may appeal by leave of court under
{¶ 19} In Bistricky, the trial court dismissed drug-trafficking charges against five police officers on the basis that they were entitled to the exemption in
{¶ 20} On review, this court agreed that double-jeopardy principles prohibited retrial of the defendants, but noted that resolution of the legal issue of whether the appeal was permitted would not affect the bar to retrial. Bistricky, 51 Ohio St.3d at 158, 555 N.E.2d 644. We first concluded that the issue of whether a substantive legal determination underlying an acquittal was appealable by the state under
{¶ 21} The question here is whether the prosecutor‘s appeal of the trial court‘s December 22, 2003 order is authorized under
{¶ 22} The state argues that Carlisle v. United States (1996), 517 U.S. 416, 116 S.Ct. 1460, 134 L.Ed.2d 613, which construes
{¶ 23} Contrary to the state‘s argument, the United States Supreme Court in Carlisle did not cast its ruling in jurisdictional terms. See Kontrick v. Ryan (2004), 540 U.S. 443, 454-455, 124 S.Ct. 906, 157 L.Ed.2d 867 (“this Court [in Carlisle] did not characterize [
{¶ 24} Eberhart v. United States (2005), 546 U.S. 12, 126 S.Ct. 403, 163 L.Ed.2d 14, sheds further light on the nature of the time limits in
{¶ 25} The Supreme Court reversed:
{¶ 27} Thus, in Eberhart, the rule‘s strict time limitation could have prevented the trial court from considering the untimely supplemental material had the government timely objected to the fact that it had been filed out of rule.
{¶ 28} The state also contends that United States v. Gupta (C.A.11, 2004), 363 F.3d 1169, shows that the trial court lacked jurisdiction to reconsider and grant Ross‘s renewed motion for acquittal. In Gupta, the trial court had initially denied a timely filed
{¶ 29} The court of appeals in Gupta reasoned that when the trial court denied the timely filed motion for acquittal, “nothing remained to be done,” except sentencing the defendants. Id. at 1174. The court of appeals treated the renewed motion as an untimely filed motion for acquittal or a new trial, which the appellate court concluded was beyond the trial court‘s authority to grant. Id. Gupta predated Eberhart, 546 U.S. 12, 126 S.Ct. 403, 163 L.Ed.2d 14, which undercuts Gupta‘s characterization of
{¶ 30} The state has not pointed to an independent reason under Ohio law to believe that
{¶ 31} Therefore, the state‘s contention that the trial court‘s acquittal of Ross on the rаpe charge and related death-penalty specification is a nullity because the trial court was without subject-matter jurisdiction to enter it is incorrect. The question remains whether the state‘s appeal in this case was proper.
3
{¶ 32} As discussed above, an appeal of the judgment of acquittal itself is not authorized under
{¶ 33} The state‘s appeal, which is limited pursuant to Bistricky, 51 Ohio St.3d 157, 555 N.E.2d 644, syllabus, to the legal issue of the propriety of the trial court‘s reconsideration of its denial of a timely motion for acquittal under
{¶ 34} Accordingly, we will answer the question whether the trial court properly reconsidered its previous decision to deny Ross‘s
B
{¶ 35} The court of appeals held that the trial court‘s September 10, 2003 order denying Ross‘s timely made motion for acquittal under
1
{¶ 36} To determine whether a motion for acquittal may be renewed outside the time limitations of
{¶ 38}
{¶ 39} While
2
{¶ 40} The strict time limitations in
{¶ 41} The court of appeals determined that
{¶ 42} In Pitts, we held that a motion for reconsideration of a final judgment in a civil case is a nullity. A footnote in Pitts noted in dicta that interlocutory civil orders are subject to motions for reconsideration, based on
{¶ 43} In our view,
{¶ 44} The court of appeals’ ruling in this case also provides no endpoint for a trial court‘s ability to reconsider its denial of a
{¶ 45} We thus conclude that
3
{¶ 46} Ross filed his supplemental memorandum in support of his renewed motion for acquittal in November 2003—over three years after the jury had been dismissed following the mistrial, and thus well after the 14-day time frame specified in
{¶ 47} In the renewed motion, Ross urged the trial court to determine that information provided by the state after the trial (which cast doubt on the state‘s expert testimony at trial concerning bite marks on the victim) undercut the rape charge and the related death-penalty specification. At the November 12, 2003 hearing on the renewed motion for acquittal, defense counsel conceded that the new bite-mark evidence was not relevant to a
{¶ 48} We conclude that Ross‘s renewed motion for acquittal was effectively a new motion untimely filed outside the 14-day time period in
{¶ 49} Accordingly, the trial court in this case erred in reconsidering its initial denial of Ross‘s motion for acquittal under
III. Conclusion
{¶ 50} For the above reasons, we hold that the trial court erred in granting reconsideration of its initial denial of Ross‘s
{¶ 51} We have answered the substantive legal question presented in the state‘s proposition of law. However, pursuant to Bistricky, 51 Ohio St.3d 157, 555 N.E.2d 644, syllabus, and Yates, 32 Ohio St.3d 30, 512 N.E.2d 343, syllabus, we do not disturb the trial judge‘s acquittal order because that order—as distinct from the substantive legal rulings underlying it—is not appealable under
{¶ 52} Because the trial court granted Ross an acquittal on only some of the charges remaining against him, we remand this case to the trial court for further proceedings not inconsistent with this opinion. See, e.g., Smith v. Massachusetts (2005), 543 U.S. 462, 469, 125 S.Ct. 1129, 160 L.Ed.2d 914, fn. 3 (“our cases establish that jeopardy may terminate on some counts, even as it continues on others“).
Cause remanded to the trial court for further proceedings.
BROWN, C.J., dissents.
LANZINGER, J., dissents and would dismiss the appeal as having been improvidently accepted.
JOHN A. CONNOR, J., of the Tenth Appellate District, sitting for O‘CONNOR, J.
BROWN, C.J., dissenting.
{¶ 53} The court of appeals cogently summarized the issue now before this court as follows: “[W]hether, once a trial court has denied a motion for acquittal that was properly filed within 14 days after the jury was discharged following a mistrial, the trial court has authority to reconsider that denial.” State v. Ross, 184 Ohio App.3d 174, 2009-Ohio-3561, 920 N.E.2d 162, ¶ 16. The majority holds that the answer to this inquiry is “no.” I disagree. In my view, the court of appeals correctly recognized that the trial court‘s initial denial of a timely filed
{¶ 54} It has long been the law in Ohio that “a trial court has inherent power and authority to reconsider its own interlocutory rulings.” Goldman v. Transp. Leasing, Inc. (Feb. 19, 1981), Cuyahoga App. No. 42480, citing Wayne Cty. Natl. Bank v. Predmore-Henry Motor Co. (1928), 7 Ohio Law Abs. 425, 1928 WL 2686. See also Olson v. Watson (1936), 22 Ohio Law Abs. 118, 1936 WL 2084. “Where reconsideration of an interlocutory ruling is in the interests of justice, no rule of law, either statutory or court made, precludes a trial court from reconsidering rulings made during the course of a trial.” Goldman. This long-established doctrine applies to both civil and criminal cases. Stow v. Sexton (Jan. 10, 1996), Summit App. No. 17263, 1996 WL 11985.
{¶ 55} The majority‘s analysis focuses on “whether a renewed motion for acquittal may be made outside the time limitations of
{¶ 56} The fact that the defense filed a renewed defense motion or motion for reconsideration does not change that conclusion. Surely the trial court‘s authority to reconsider an interlocutory order cannot be divested simply because a party submits a supplemental written filing—which the trial court arguably may in its
{¶ 57} Assume, hypothetically, that defense counsel for Ross had suggested orally during a court proceeding, rather than in a written filing, that counsel continued to believe that there was insufficient evidence to prove Ross‘s guilt and that the earlier denial of a timely filed motion for acquittal had been wrongly decided. Under the majority‘s ruling, the trial court could not thereafter review its previous decision, and it would lack the authority to correct a ruling it believed to be erroneous. In fact, the majority would preclude a trial judge from changing its interlocutory ruling sua sponte to correct what it believes to be a mistake. As a trial judge, I sometimes recognized an error in a previous interlocutory ruling, and in that event, I would bring the matter to the attention of counsel and provide an appropriate correction. In my view, when a trial judge rеalizes it has erred, it is preferable for the judge to correct its mistake promptly rather than to continue with proceedings only to have that error corrected later by the court of appeals. The majority appears to preclude that result, depriving a trial court of appropriate discretionary authority and failing to promote judicial economy.
{¶ 58} It is true that pursuant to
{¶ 59} In summary,
{¶ 61} Accordingly, I dissent.
William D. Mason, Summit County Special Prosecuting Attorney, and Matthew E. Meyer, Assistant Prosecuting Attorney, for appellant.
Burdon & Merlitti and Lawrence J. Whitney; and Jacob A. Cairns, for appellee.
Thomas L. Sartini, Ashtabula County Prosecuting Attorney, and Shelley M. Pratt, Assistant Prosecuting Attorney, urging reversal for amicus curiae Ohio Prosecuting Attorneys Association.
Timothy Young, Ohio Public Defender, and Craig M. Jaquith, Assistant Public Defender, urging affirmance for amicus curiaе Ohio Public Defender.