State v. Matthews , 81 Ohio St. 3d 375 ( 1998 )

Lundberg Stratton, J.

Section 3(B)(2), Article IV of the Ohio Constitution establishes that courts of appeals have “such 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 * *

R.C. 2505.02 provides that “[a]n order that affects a substantial right in an action which in effect determines the action and prevents a judgment, an order that affects a substantial right made in a special proceeding or upon a summary application in an action after judgment, or an order that vacates or sets aside a judgment or grants a new trial is a final'order that may be reviewed, affirmed, modified, or reversed, with or without retrial.” (Emphasis added.)

Further, R.C. 2505.03 provides:

“(A) Every final order, judgment, or decree of a court * * * may be reviewed on appeal by a court of common pleas, a court of appeals, or the supreme court, whichever has jurisdiction.” (Emphasis added.)

R.C. 2505.02 makes the granting of a new trial a final order. R.C. 2505.03(A) states that “[ejvery final order” may be reviewed on appeal. Thus, at first glance, the resolution of the issue seems clear. However, in the past, this court has arrived at a different conclusion. In State v. Huntsman (1969), 18 Ohio St.2d 206, 47 O.O.2d 440, 249 N.E.2d 40, this court found that an order granting a defendant a new trial was a “final order” within the meaning of those words as used in Section 3, Article IV of the Ohio Constitution and in R.C. 2953.02, and therefore appealable. Id. at 210-211, 47 O.O.2d at 443, 249 N.E.2d at 43. However, this court found that the thrust of R.C. 2953.02 to 2953.13 clearly indicated that the General Assembly was contemplating appeals by the defendant in a criminal action and not by the state. Thus, the court held that R.C. 2953.02 to 2953.14 inclusive do not provide for an appeal on behalf of the state from the action of the trial judge in granting a defendant’s motion for a new trial.

However, Huntsman dealt with R.C. Chapter 2953, while the case at bar involves R.C. 2505.02. Further, while the Huntsman court differentiated between appeals under R.C. Chapters 2953 and 2505, finding that R.C. Chapter 2505 covered civil appeals, this court has since applied R.C. 2505.02 to criminal cases. See State v. Davidson (1985), 17 Ohio St.3d 132, 17 OBR 277, 477 N.E.2d 1141, where this court held that an order granting a motion seeking to suppress evidence “[is] a final appealable order within the meaning of R.C. 2505.02.” Id. at 135, 17 OBR at 280, 477 N.E.2d at 1145. Therefore, we have already implicitly held that R.C. 2505.02 applies to all appeals, civil and criminal.

In this case, the court of appeals denied leave to appeal pursuant to R.C. 2945.67, which provides that “[a] prosecuting attorney * * * may appeal as a matter of right any decision of a trial court in a criminal case * * * which grants a motion to dismiss all 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 * * * 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 * * *.” R.C. 2945.67(A).

R.C. 2945.67(A) is unique to criminal cases, dealing with procedural aspects that occur only in criminal cases, and draws a distinction between an appeal as of right and an appeal by leave. This statute enumerates four trial court decisions from which the state may appeal as a matter of right: a motion to dismiss all or any part of an indictment, complaint, or information, a motion to suppress evidence, a motion for the return of seized property, or a motion granting postconviction relief. R.C. 2945.67(A). All other appeals are by leave at the discretion of the court of appeals, except, of course, that the state may not appeal a final verdict.

One could argue that R.C. 2945.67, as enacted November 1, 1978, implicitly overruled Huntsman and expanded state appeals by leave to include orders granting new trials. To clarify any lingering confusion, we hold that pursuant to R.C. 2505.02 and 2505.03(A), a trial court’s order granting the defendant a new trial in a criminal case is a final appealable order. However, the state may appeal from that order only by leave of the court to which the appeal is taken, pursuant to R.C. 2945.67(A). State v. Huntsman, 18 Ohio St.2d 206, 47 O.O.2d 440, 249 N.E.2d 40, is no longer applicable.

A motion for a new trial is addressed to the sound discretion of the trial court, and the court’s ruling on the motion will not be disturbed on appeal absent an abuse of discretion. State v. Schiebel (1990), 55 Ohio St.3d 71, 564 N.E.2d 54, paragraph one of the syllabus. The defendant’s first motion for new trial alleged that Roulette later received consideration for his testimony after both he and the prosecution denied the existence of a deal. The second motion for new trial alleged that a man named Raymond Marks came forward on April 4, 1991 to confess that he was the individual who murdered Wayne Price. The third motion for new trial alleged that Roulette provided a sworn statement recanting his prior trial testimony where he identified defendant as the murderer. Finally, the fourth motion for new trial was based on a combination of Roulette’s alleged recantation, Roulette’s alleged secret deal with the state, and newly discovered evidence of Paxton’s alleged secret deal with the state.

Granting or denying the state’s motion for leave to appeal in a criminal case is solely within the discretion of the reviewing court. State v. Fisher (1988), 35 Ohio St.3d 22, 517 N.E.2d 911, paragraph two of the syllabus; State v. Ferman (1979), 58 Ohio St.2d 216, 12 O.O.3d 206, 389 N.E.2d 843. Although the court of appeals in its 1992 affirmance of defendant’s convictions and the denial of defendant’s first motion for new trial did indeed address the possibility of secret deals between the state and Roulette and Paxton, it was not until after defendant was convicted that Roulette and Paxton actually would have received any leniency. Thus, while these early references to the alleged deals with Roulette and Paxton could be seen as barring the granting of defendant’s final motion for new trial due to considerations of res judicata, see State v. Perry (1967), 10 Ohio St.2d 175, 39 O.O.2d 189, 226 N.E.2d 104, that was for the trial court to decide in granting the final motion for new trial. From the numerous and varied motions for new trial alleging secret deals, recantations, and even another possible killer, the facts of this case are so murky that we cannot determine whether the court of appeals should have granted leave to appeal.

We are now clarifying that under R.C. 2505.02 and 2505.03(A), a trial court’s order granting the defendant a new trial in a criminal case is a final appealable order which the state may appeal by leave of court. Thus, at the time this matter was before the court of appeals, it was unclear whether Huntsman was the law and whether orders granting a new trial in criminal cases were final appealable orders.

In this case, the appellate court’s decision consisted of only one line: “Motion by appellant for leave to appeal pursuant to R.C. 2945.67 is denied.” The court of appeals’ order overruling the state’s motion for leave to appeal fails to reveal the basis upon which the court relied. It is unclear whether the court of appeals denied leave to appeal under R.C. 2945.67 because it assumed that an order granting a motion for a new trial was not a final order appealable by the state or whether the court simply denied leave under its discretionary authority. Therefore, because this court now clarifies that an order granting a new trial in a criminal case is a final appealable order, we remand to the court of appeals for further proceedings not inconsistent with this opinion.

Judgment reversed and cause remanded.

Resnick and Pfeifer, JJ., concur. Moyer, C.J., concurs in the syllabus and judgment. Douglas and F.E. Sweeney, JJ., dissent. Cook, J., dissents.