State v. RucciState v. Rucci
Case Information
*1
[Cite as
State v. Rucci
,
STATE OF OHIO, MAHONING COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT STATE OF OHIO, )
)
PLAINTIFF-APPELLANT, )
) - VS - ) CASE NOS. 13 MA 65-72 )
SEBASTIAN RUCCI, )
)
CURTIS JONES, ) OPINION
)
DERRICK DOZIER, )
)
WAYNE PENNEY, )
)
PETER SCIULLO, )
)
GOGO GIRLS CABARET, )
)
5455 CLARKINS DR., INC., )
)
TRIPLE-G INVESTMENTS, INC., )
)
DEFENDANTS-APPELLEES. ) CHARACTER OF PROCEEDINGS: Criminаl Appeals from Common
Pleas Court, Case Nos. 10 CR 364, 10 CR 364(B), 10 CR 364(C), 10 CR 364(D), 10 CR 364 (E), 10 CR 364(F), 10 CR 364(G), 10 CR 364(H).
JUDGMENT: Dismissed.
JUDGES:
Hon. Mary DeGenaro
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite
Dated: March 28, 2014 APPEARANCES:
For Plaintiff-Appellant: Attorney Paul J. Gains
Prosecuting Attorney Attorney Ralph M. Rivera Assistant Prosecuting Attorney 21 W. Boardman St., 6th Floor Youngstown, OH 44503 For Defendants-Appellees: Attorney James Vitullo
5232 Naushua Drive, Suite 5
Austintown, OH 44515-5122
For Sebastian Rucci,
GoGo Girls Cabaret,
5455 Clarkins Drive, Inc., and
Triple G Investments, Inc.
Attorney Albert Palombaro
4822 Market Street, Suite 301
Youngstown, OH 44512
For Curtis Jones
Attorney Thomas Zena
4822 Market Street, Suite 301
Youngstown, OH 44512
For Derrick Dozier
Attorney Jeffrey Kurz
42 N. Phelps Street
Youngstown, OH 44503
For Wayne Penney
Attorney Paul Conn
8261 Market St., Suite B-2
Youngstown, OH 44512
For Peter Sciullo
*3
[Cite as
State v. Rucci
,
DeGenaro, P.J.
{¶1}
Appellant, State of Ohio, appeals from the April 4, 2013 judgment entry
denying its motion to vacate a November 21, 2011 judgment pursuant to Civil Rule
60(B)(4). The General Assembly has made the public policy determination that the
State has very limited appeal rights in criminal proceedings; moreover, those rules
are to be strictly construed against the State. Because R.C. 2945.67(A) and
Facts and Procedural History
{¶2} On April 14, 2010, felony indictments were filed against the GoGo Girls Cabaret, Inc., 5455 Clarkins Drive, Inc., Triple G Investments, Inc., Sebastian Rucci, Robert Neill, Curtis Jones, Derrick Dozier, Wayne Penny, and Peter Sciullo ("Appellees"). The twenty three counts include engaging in a pattern of corrupt activity, multiple counts of promoting prostitution, multiple counts of money laundering, and multiple counts of perjury. These cases were assigned to Visiting Judge Thomas P. Curran.
{¶3} Relevant to this appeal, on April 27, 2010, misdemeanor complaints were filed in the Austintown Cоunty Court against nineteen dancers of the GoGo Girls Cabaret charging them with multiple counts of prostitution. On September 2, 2011, Judge David D'Apolito granted the dancers' motions to suppress and dismiss, holding that because the evidence did not depict sexual activity as defined by the Revised Code, the prostitution complaints must be dismissed.
{¶4} This ruling led to Appellees moving to dismiss the felony charges pending before Judge Curran, contending res judicata barred the State from further prosecution. Appellees reasoned that because the misdemeanor prostitution complaints were dismissed, they could no longer be charged with promoting prostitution or the related offenses. The State argued that Judge D'Apolito erred in *4 granting the dancer's motions to suppress and dismiss, that the matter was not res judicata because it was on appeal and therefore had no effect on the presеnt case. When it became apparent during the hearing that Judge Curran was likely to dismiss the indictments, as a fallback position the State asked for a stay of the felony criminal proceedings pending resolution of the appeal of the dismissed misdemeanor complaints.
{¶5} On November 21, 2011, the triаl court dismissed all counts in the Indictment against Appellees, except for the perjury charges. Judge Curran stated:
This court finds that the decision of Judge D'Apolito, is a final
appealable order, emanating from a court of record, involving the same
parties, or those in privity, possessing a mutuality of interest, including
an identity of desired result. The principal element in all of the counts of
the indictment (except the perjury counts) is that the Defendants in the
instant case promoted dancers who engaged in sexual activity.
However, Judge D'Apolito's order contradicts that allegatiоn.
{¶6}
Although the State failed to appeal Judge Curran's decision in the
felony case, it did appeal Judge D'Apolito's decision dismissing the misdemeanor
prostitution complaints. However, on December 31, 2012, this Court reversed Judge
D'Apolito's orders granting the Dancers' motions to suppress, and vacated the orders
granting the Dancers' motion to dismiss. See State v. Wallace ,
{¶7}
In light of Wallace, on January 17, 2013, the State filed a motion
pursuant to
State's Right to Appeal
{¶8} In its sole assignment of error, the State asserts: {¶9} "THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED THE STATE'S MOTION FOR RELIEF FROM JUDGMENT PURSUANT TO CIVIL RULE 60(B)(4), BECAUSE CIVIL RULE 60(B) WAS APPLICABLE TO THE STATE PURSUANT TO CRIMINAL RULE 57(B), AND THE PROPER REMEDY FOR CHALLENGING A DISMISSAL OF AN INDICTMENT BASED UPON COLLATERAL ESTOPPEL IS A CIVIL RULE 60(B)(4) MOTION AFTER THE JUDGMENT ENTRY (THAT CREATED THE COLLATERAL ESTOPPEL) IS LATER REVERSED ON APPEAL."
{¶10}
Resolution of this appeal is dependent uрon the interplay between the
civil and criminal rules of procedure, as well as the limitations upon the State's ability
to appeal in criminal cases. The State filed its motion to vacate pursuant to
decision dismissing a majority of the counts contained within the felony indictment by
seeking to vacate that order via a motion pursuant to
{¶12}
It is a fundamental principle of both civil and criminal procedure that a
State to challenge a trial court's decision granting a motion to suppress with a
The decision that appellant is seeking leave to appeal is a
judgment entry overruling a second motion to vacate a suppression
order. As mentioned above, appellant had previously appealed the
suppressiоn order to this court, and we upheld the judgment of the trial
court. State v. Tate , 7th Dist. No. 07 MA 130,
Appellant filed a second motion to vacate the suppression order. This motion was premised on the existence of allegedly new evidence attempting to show that certain testimony given during the suppression hearing was not entirely truthful. The trial court overruled the motion on October 14, 2008, and appellant has filed yet another appeal under the discretionary provisions of R.C. 2945.67(A).
We agree with appellant that if the trial court's judgment may be appealed at all, it may be appealed only as a discretionary appeal. Although a prosecutor may pursue an appeal as of right of an adverse ruling on a defendant's motion to suppress, there is nothing in R.C. 2945.67(A) that allows the prosecutor to appeal as of right a subsequent motion to vacate a suppression order.
Regardless of the basis on whiсh appellant is attempting to appeal the trial court's ruling, we have no jurisdiction to accept this appeal. The Eighth District Court of Appeals has held: "There is no provision in the Rules of Criminal Procedure for a motion to vacate a final order granting a motion to suppress. 'Courts in Ohio not only have no authority to reconsider a valid final judgment in criminal cases * * * they are also precluded from reentering judgment in order to circumvent theApp.R. 4(A) limitation period.' State v. Myers (Nov. 18, 1993), Cuyahoga App. No. 65309, unreported [1993 WL 483554]; State v. Bernard (May 26, 2000), Montgomery App. No. 18058, unreported [2000 WL 679008 ]." State v. Mayo (April 24, 2002), 8th Dist. No. 80216,2002 WL 853547 .
The Rulеs of Criminal Procedure provide the state with one
direct appeal of an adverse ruling of a suppression motion. Crim.R.
*8
12(K). Appellant has pursued that appeal and was unsuccessful.
Appellant has filed two further motions with the trial court to overturn not
only the trial court's ruling, but also our judgment in the matter. The
state in general is prohibited from filing appeals in criminal cases, and
any limited rights of appeal provided by rule or statute are strictly
construed. State v. Caltrider (1975),
Tate III , ¶5-10. In Tate II the State sought leave to file a discretionary appeal pursuant
to
{¶15}
Although the State framed this proceeding as a discretionary appeal of
the denial of a motion to vacate, it is in reality challenging the trial court's November
21, 2011 decision dismissing a majority of the counts contained within the felony
indictment. The rules of court and statutes governing appeals in criminal
proceedings are strictly construed against the State. State v. Caltrider , 43 Ohio St.2d
157,
appeals to hear an appeal by the State, either as of right or discretionary, in jurisdictional terms:
Section 3(B)(2), Article IV of the Ohio Constitution sets forth the appellate jurisdiction of the courts of appeals. It provides in relevant part: "Courts of appeals shall hаve jurisdiction as may be provided by law to review and affirm, modify, or reverse judgments or final orders of the courts of record inferior to the court of appeals within the district * * *" (Emphasis added.) The provision has been interpreted to mean that *10 the state has no absolute right of appeаl in a criminal matter unless specifically granted such right by statute.
State v. Fisher ,
{¶17} Thus, in Tate I & II, this court dismissed the State's appeal, reasoning that "our jurisdiction must be properly invoked before we can decide whether to exercise that discretion to grant leave to appeal." Tate II , ¶47. Our decision in Christian alsо addressed the State's ability to appeal in jurisdictional terms.
{¶18}
Here, R.C. 2945.67(A) and
Christian , a motion to vacate pursuant to
Vukovich, J., concurs.
Waite, J., concurs.