THE STATE EX REL. MCINTYRE v. SUMMIT COUNTY COURT OF COMMON PLEAS ET AL.
No. 2015-0080
Supreme Court of Ohio
December 23, 2015
144 Ohio St.3d 589, 2015-Ohio-5343
Submitted August 11, 2015
{¶ 1} Relator, Lewis Leroy McIntyre Jr., seeks a writ of mandamus compelling the issuance of a final, appealable order in his criminal case, State v. McIntyre, Summit C.P. No. CR-91-01-0135. He also seeks writs of prohibition for the purported purpose of curing a number of alleged errors in the criminal proceedings. Respondents, the Summit County Court of Common Pleas, Judge Mary F. Spicer (retired), and Judge Thomas A. Teodosio (collectively “the county“) have filed a motion to dismiss based on res judicata.1 We deny the county‘s motion, deny McIntyre‘s motion for oral argument, grant a peremptory writ of mandamus, and dismiss the petition for writs of prohibition as premature.
Background
{¶ 2} In February and July 1991, McIntyre was indicted on two counts of felonious assault and one count of aggravated burglary, plus specifications. Before trial, the trial court granted an oral motion to amend one of the felonious-assault counts to add a second victim.
{¶ 3} The jury convicted McIntyre of aggravated burglary and one count of felonious assault. The jury was unable to reach a verdict as to the amended felonious-assault count.
{¶ 4} The trial court issued a sentencing entry on September 9, 1991. That entry did not dispose of the amended felonious-assault charge on which the jury had failed to reach a verdict. The entry also failed to address two new indictments that had been added to the case and were pending at the time.
{¶ 5} The state later indicted McIntyre on two new charges, again under the same case number. On May 22, 1992, the trial court issued a sentencing entry
{¶ 6} Finally, on June 28, 2012, Judge Teodosio signed an entry dismissing the felonious-assault charge as well as a related firearm specification. However, the court‘s order dismissed the felonious-assault charge as indicted, without disposing of the charge as amended before trial.
Legal analysis
{¶ 7} Respondents’ motion to dismiss argues that res judicata applies to all of McIntyre‘s claims. However, res judicata cannot apply if the trial court never issued a final, appealable order. See State v. Griffin, 138 Ohio St.3d 108, 2013-Ohio-5481, 4 N.E.3d 989, ¶ 3.
{¶ 8} A final, appealable order in a criminal case under
{¶ 9} None of the documents in this case is a final, appealable order. The September 9, 1991 sentencing entry did not dispose of the felonious-assault charge, nor did it address the two new indictments that were pending at the time under the same case number. Likewise, the May 22, 1992 entry memorializing the plea bargain failed to reference the earlier verdicts and also left the felonious-assault charge unresolved. And finally, Judge Teodosio‘s June 28, 2012 order dismissing the felonious-assault charge did not recount the prior dispositions.
{¶ 10} In order to fashion a final, appealable order, then, one would have to consult at least three separate documents in violation of the Baker one-document rule. Moreover, at least one claim, the felonious-assault charge that was amended to add a second victim, has never been addressed in any court order.
{¶ 11} For this reason, we deny respondents’ motion to dismiss and issue a peremptory writ pursuant to
Motions denied, petition for writs of prohibition dismissed, and writ of mandamus granted.
LANZINGER, J., concurs in judgment only.
O‘DONNELL, J., dissents and would dismiss the petition as barred by res judicata.
FRENCH, J., dissents.
O‘CONNOR, C.J., not participating.
Stephen P. Hanudel, for relator.
Sherri Bevan Walsh, Summit County Prosecuting Attorney, and Colleen Sims, Assistant Prosecuting Attorney, for respondents.