State v. Emich , 2018 Ohio 627 ( 2018 )

[Cite as State v. Emich, 2018-Ohio-627.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA )
STATE OF OHIO C.A. No. 17CA0039-M
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
JEFFREY K. EMICH COURT OF COMMON PLEAS
COUNTY OF MEDINA, OHIO
Appellant CASE No. 16CR0468
DECISION AND JOURNAL ENTRY
Dated: February 20, 2018
CARR, Judge.
{¶1} Defendant-Appellant Jeffrey K. Emich appeals from the judgment of the Medina
County Court of Common Pleas. This Court affirms.
I.
{¶2} In August 2016, an indictment was filed alleging that Emich committed identity
fraud in violation of R.C. 2913.49(B)(1), a felony of the fifth degree. Emich filed a motion to
dismiss based upon double-jeopardy grounds. Emich argued that he was previously prosecuted
for falsification in municipal court based upon the same incident, had pleaded guilty in that case,
and thus asserted that the present prosecution was barred by double jeopardy. The State opposed
Emich’s motion and a hearing was held. Ultimately, in September 2016, the trial court denied
Emich’s motion. Subsequently, Emich pleaded guilty to identity fraud. The trial court sentenced
Emich accordingly.
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{¶3} Emich has appealed, raising two assignments of error for our review, which will
be addressed out of sequence to facilitate our analysis.
II.
{¶4} Before addressing the merits of this appeal, we pause to discuss whether we have
jurisdiction. Specifically, we examine whether Emich’s appeal is timely. Emich’s notice of
appeal was filed pro se on May 26, 2017. Therein, Emich asserted that he was appealing “all
appealable issues[.]” Emich’s sentencing entry was journalized May 3, 2017; thus, an appeal
from his conviction is timely. See App.R. 4(A).
{¶5} Nonetheless, the State has argued that Emich’s appeal is untimely because his
appeal relates to the trial court’s denial of his motion to dismiss based upon double jeopardy.
The State correctly notes that the denial of a motion to dismiss based upon double-jeopardy
grounds is a final appealable order. See State v. Anderson, 138 Ohio St.3d 264, 2014-Ohio-542,
¶ 61. Emich’s motion to dismiss was denied in an entry journalized on September 27, 2016. The
State maintains that, pursuant to App.R. 4(A), Emich was required to appeal within 30 days from
September 27, 2016. Therefore, his May 26, 2017 notice of appeal was untimely. Emich argues
that, while he was permitted to immediately appeal from the September 2016 order, he was not
required to do so. Emich relies on law that predates Anderson, which the State contends was
overruled by Anderson.
{¶6} However, we cannot conclude that Anderson itself addresses the issue. While
Anderson provides that a defendant can immediately appeal the denial of a motion to dismiss on
double-jeopardy grounds, it does not address the procedural consequences, if any, of a
defendant’s failure to do so. Thus, we are unpersuaded by the State’s argument. Further, we
remain mindful that “the protection against double jeopardy is not just protection against being
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punished twice for the same offense, it is also the protection against being tried twice for the
same offense.” (Internal quotations and citation omitted.) Anderson at ¶ 58. Thus, an
interlocutory appeal would protect both aspects of the right. Accordingly, a defendant’s failure
to immediately appeal, and to instead wait until a judgment of conviction is journalized, would
necessarily forgo any argument that the defendant could not be subject to a second prosecution,
as such an argument would be moot. See id. at ¶ 58-59. However, the defendant would not be
subject to the full harm of a double-jeopardy violation until the time a judgment of conviction is
entered. Therefore, the denial of the motion to dismiss should also be reviewable following the
entry of the judgment of conviction as that is the point in time that the harm is fully realized.
The State has made no compelling argument as to why this harm should not be reviewable from
the final judgment. Given the foregoing, we proceed to address the merits of Emich’s appeal.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED BY DENYING APPELLANT’S MOTION TO
DISMISS DUE TO DOUBLE JEOPARDY VIOLATIONS, IN VIOLATION OF
THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED
STATES CONSTITUTION, AND ARTICLE I, SECTION 10 OF THE OHIO
CONSTITUTION.
{¶7} Emich argues in his second assignment of error that the trial court erred in
denying his motion to dismiss based upon double jeopardy. We do not agree.
{¶8} First, we note that Emich has not waived this argument by pleading guilty. See
State v. Fitzpatrick, 102 Ohio St.3d 321, 2004-Ohio-3167, ¶ 79; State v. McGee, 9th Dist. Lorain
No. 96CA006507, 1997 Ohio App. LEXIS 2965, *6 (July 2, 1997).
{¶9} “We apply a de novo standard of review when reviewing the denial of a motion to
dismiss an indictment on the grounds of double jeopardy.” State v. Toth, 9th Dist. Medina No.
16CA0086-M, 2017-Ohio-5481, ¶ 6, quoting State v. Hartman, 9th Dist. Medina No.
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15CA0090-M, 2017-Ohio-1089, ¶ 9. “The Fifth Amendment to the United States Constitution
provides that ‘[n]o person shall * * * be subject for the same offense to be twice put in jeopardy
of life and limb.’ Similarly, Section 10, Article I, Ohio Constitution provides, ‘No person shall
be twice put in jeopardy for the same offense.’” State v. Lamp, 9th Dist. Summit No. 26602,
2013-Ohio-1219, ¶ 5.
{¶10} “In State v. Zima, 102 Ohio St.3d 61, 2004-Ohio-1807, ¶ 18, * * * the Supreme
Court held that determining whether an accused is being successively prosecuted for the ‘same
offense’ requires courts to apply the ‘same elements’ test articulated in Blockburger [.]” Lamp at
¶ 7. That test provides the
applicable rule under the Fifth Amendment is that, where the same act or
transaction constitutes a violation of two distinct statutory provisions, the test to
be applied to determine whether there are two offenses or only one is whether
each provision requires proof of a fact which the other does not. * * * A single act
may be an offense against two statutes, and if each statute requires proof of an
additional fact which the other does not, an acquittal or conviction under either
statute does not exempt the defendant from prosecution and punishment under the
other.
(Internal quotations and citations omitted.) Id. “This test focuses upon the elements of the two
statutory provisions, not upon the evidence proffered in a given case. Thus, the Blockburger test
inquires whether each offense contains an element not contained in the other; if not, they are the
‘same offence’ and double jeopardy bars additional punishment and successive prosecution.”
(Internal citations and quotations omitted.) Toth at ¶ 8.
{¶11} In his motion to dismiss the indictment, Emich argued that he previously was
charged with falsification and driving under suspension based upon an incident that also formed
the basis of the identity fraud count that was the subject of the indictment in the current matter.
Emich asserted that he pleaded guilty in the previous matter and was sentenced. He argued that
the prosecution for identity fraud thus violated the prohibition against double jeopardy. To his
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motion, he attached uncertified copies of what appear to be pages from the docket of his
municipal court cases.
{¶12} At the hearing on the motion, Emich’s trial counsel presented no witnesses or
evidence and instead relied upon his brief and attached filings. He argued that the falsification
charge was the same charge as the identify fraud charge and thus the indictment should be
dismissed. In ruling on the motion, the trial court concluded that Emich failed to present
sufficient evidence that he was even convicted of any crime in the prior proceeding. The trial
court pointed out that Emich did not present a copy of the municipal court charging instrument or
a copy of the judgment of conviction. Nonetheless, the trial court went on to state that even if
Emich had in fact been convicted of falsification in municipal court, under the test in
Blockburger v. United States, 284 U.S. 299 (1932), his prosecution for identity fraud was not
barred.
{¶13} On appeal, Emich has not challenged the trial court’s conclusion that he presented
insufficient evidence to establish his prior conviction, which was the trial court’s primary basis
for denying his motion to dismiss. Instead, Emich solely focuses on whether falsification and
identity fraud have the same elements so as to meet the test in Blockburger. Nonetheless, as the
finding that Emich presented insufficient evidence of a prior conviction remains unchallenged on
appeal, see App.R. 16(A)(7), and formed the basis of the trial court’s decision, we can only
conclude that Emich has not demonstrated that the trial court erred in denying his motion to
dismiss. See also Cardone v. Cardone, 9th Dist. Summit Nos. 18349, 18673, 1998 Ohio App.
LEXIS 2028, *22 (May 6, 1998).
{¶14} Emich’s second assignment of error is overruled.
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ASSIGNMENT OF ERROR I
APPELLANT WAS PREJUDICED BY TRIAL COUNSEL’S OBJECTIVELY
DEFICIENT PERFORMANCE IN LITIGATING THE MOTION TO DISMISS
DUE TO DOUBLE JEOPARDY VIOLATIONS, IN VIOLATION OF THE
SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION.
{¶15} Emich argues in his first assignment of error that he received ineffective
assistance of trial counsel in litigating the motion to dismiss.
{¶16} “A guilty plea represents a break in the chain of events that preceded it in the
criminal process, such that a defendant cannot then challenge the propriety of any action taken
by a trial court or trial counsel prior to that point in the proceedings unless it affected the
knowing and voluntary character of the plea.” (Internal quotations and citations omitted.) State
v. Allen, 9th Dist. Summit Nos. 27494, 28213, 2017-Ohio-2831, ¶ 37. This Court and others
have thus concluded that ineffective assistance of counsel arguments that do not relate to the
voluntary and knowing character of the defendant’s plea, and involve errors that occurred prior
to the plea, are waived by a guilty plea. See id. at ¶ 37-38; State v. Kelly, 7th Dist. Columbiana
No. 08 CO 23, 2009-Ohio-1509, ¶ 10-11 (concluding that an ineffective assistance argument
related to double jeopardy was waived by a guilty plea). However, even if we were to consider
the merits of Emich’s argument, we would overrule it.
{¶17} In order to prevail on a claim of ineffective assistance of counsel, Emich must
show that his “counsel’s performance fell below an objective standard of reasonableness and that
prejudice arose from counsel’s performance.” State v. Reynolds, 80 Ohio St.3d 670, 674 (1998),
citing Strickland v. Washington, 466 U.S. 668, 687 (1984). “The benchmark for judging any
claim of ineffectiveness must be whether counsel’s conduct so undermined the proper
functioning of the adversarial process that the trial cannot be relied on as having produced a just
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result.” Strickland at 686. Thus, a two-prong test is necessary to examine such claims. First,
Emich must show that counsel’s performance was objectively deficient by producing evidence
that counsel acted unreasonably. State v. Keith, 79 Ohio St.3d 514, 534 (1997), citing Strickland
at 687. Second, Emich must demonstrate that but for counsel’s errors, there is a reasonable
probability that the results of his trial would have been different. Keith at 534.
{¶18} Here, Emich argues it was unreasonable for his trial counsel to fail to submit more
substantial evidence to support his motion to dismiss. However, even if that were true, the
evidence that Emich believes should have been submitted is not in the record and is not properly
before this Court. For example, we do not know whether the charging instrument and judgment
of conviction from the municipal court would support Emich’s claims as they are not part of this
Court’s record. “This Court is confined to the record on appeal and may not engage in
assumptions to sustain an ineffective assistance of counsel argument.” State v. Zeber, 9th Dist.
Summit No. 28481, 2017-Ohio-8987, ¶ 8, quoting State v. Higgins, 9th Dist. Summit No. 26120,
2012-Ohio-5650, ¶ 9. “When allegations of the ineffectiveness of counsel are premised on
evidence outside the record, * * * the proper mechanism for relief is through the post-conviction
remedies of R.C. 2953.21, rather than through a direct appeal.” Zeber at ¶ 8. Given the
foregoing, Emich has not demonstrated that trial counsel was ineffective. See id.{¶19} Emich’s first assignment of error is overruled.
III.
{¶20} Emich’s assignments of error are overruled. The judgment of the Medina County
Court of Common Pleas is affirmed.
Judgment affirmed.
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There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
DONNA J. CARR
FOR THE COURT
HENSAL, P. J.
CALLAHAN, J.
CONCUR.
APPEARANCES:
MATTHEW B. AMEER, Attorney at Law, for Appellant.
S. FORREST THOMPSON, Prosecuting Attorney, and VINCENT V. VIGLUICCI and
LAUREN M. HASE, Assistant Prosecuting Attorneys, for Appellee.