State v. Jenkins , 2019 Ohio 2737 ( 2019 )

[Cite as State v. Jenkins, 2019-Ohio-2737.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellant, :
No. 107518
v. :
MICHAEL J. JENKINS, :
Defendant-Appellee. :
JOURNAL ENTRY AND OPINION
JUDGMENT: DISMISSED
RELEASED AND JOURNALIZED: July 3, 2019
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-14-585521-B
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Daniel T. Van, Assistant Prosecuting
Attorney, for appellant.
Mark A. Stanton, Chief Public Defender, and Erika B.
Cunliffe, Assistant Public Defender, for appellee.
ANITA LASTER MAYS, J.:
Plaintiff-appellant, the state of Ohio, appeals the trial court’s denial
of the state’s motion to reinstate the conviction of the defendant-appellee, Michael J.
Jenkins (“Jenkins”). Upon a review of the record, we find that the trial court’s denial
to reinstate the conviction is not a final appealable order, and accordingly, we have
no jurisdiction to determine this appeal.
I. Facts and Procedural History
On May 15, 2014, Jenkins, along with his codefendant, Oscar S.
Dickerson (“Dickerson”) were indicted on five counts relating to a sexual assault that
occurred on July 2, 1994. Both were charged with two counts of rape, two counts of
complicity, and one count of kidnapping. Jenkins was found guilty and sentenced
to eight years in prison. The state appealed the sentence, and Dickinson filed a
cross-appeal.
This court ordered his conviction vacated. State v. Dickerson, 2016-
Ohio-807, 60 N.E.3d 699 (8th Dist.) (“Dickerson I”). The Ohio
Supreme Court remanded that case for application of State v. Jones,
148 Ohio St.3d 167, 2016-Ohio-5105, 69 N.E.3d 688. On remand, this
court reached the same conclusion and vacated Dickerson’s
conviction, finding that his counsel was ineffective for failing to timely
file a motion to dismiss based on preindictment delay. State v.
Dickerson, 2017-Ohio-177 (“Dickerson II”). The state appealed that
decision, and the Ohio Supreme Court declined to accept the case for
review on October 11, 2017.
State v. Jenkins, 2018-Ohio-483, 106 N.E.3d 216, ¶ 2 (8th Dist.) (“Jenkins I”).
Jenkins filed an identical appeal in Jenkins I. This court held that
“Jenkins’s trial counsel was ineffective for failing to file a timely motion to dismiss
based on preindictment delay * * *,” and reversed his convictions. Id. at ¶ 45. On
remand, the trial court held a hearing on the issue of the preindictment delay and
found that Jenkins did not suffer prejudice due to the delay. The state then filed a
motion with the trial court to reinstate Jenkins’s convictions. The trial court denied
the motion to reinstate the conviction on July 6, 2018. The state sought leave to
appeal the denial of their motion, and this court granted leave. Jenkins1 and
Dickerson,2 simultaneously filed appeals on the trial court’s denial of their
preindictment delay motions. Those appeals are pending before this same panel.
The state also filed an identical appeal to this one in regards to Dickerson.3 The state
assigns one error for our review:
I. The trial court erred in denying the state’s motion to reinstate
convictions because such an order granted the defendant a new
trial where no error justifies a new trial and the taint of the
remand has been neutralized.
II. Final Appealable Order
A. Whether this Court has Authority to Review the Trial
Court’s Decision to Deny Reinstatement of
Convictions
The state contends that the trial court’s denial of its motion to
reinstate Jenkins’s convictions is a final appealable order.
The requirement of a final, appealable order is equally important in
both civil and criminal cases. “An appellate court can review only final
orders, and without a final order, an appellate court has no
jurisdiction.” Supportive Solutions, L.L.C. v. Electronic Classroom of
Tomorrow, 137 Ohio St.3d 23, 2013-Ohio-2410, 997 N.E.2d 490, ¶ 10.
State v. Anderson, 138 Ohio St.3d 264, 2014-Ohio-542, 6 N.E.3d 23, ¶ 28.
1 State v. Jenkins, 8th Dist. Cuyahoga No. 107409, currently on appeal.
2 State v. Dickerson, 8th Dist. Cuyahoga No. 107419, currently on appeal.
3 State v. Dickerson, 8th Dist. Cuyahoga No. 107520, currently on appeal.
The state argues that because the trial court denied its motion to
reinstate Jenkins’s conviction, it effectively grants Jenkins a new trial, which is a
final appealable order.
As a general rule, the state may not file an appeal except as provided
by R.C. 2945.67. State ex rel. Leis v. Kraft, 10 Ohio St.3d 34, 460
N.E.2d 1372 (1984). Pursuant to R.C. 2945.67(A), the state has a right
to appeal only when the court grants a motion: 1) to dismiss counts in
an indictment; 2) to suppress evidence; 3) to return property; or 4) for
postconviction relief. Additionally, the state “may appeal by leave
of * * * court * * * any other decision, except the final verdict * * *.”
Id. See also App.R. 5(C) (outlining the procedure the state must
follow when requesting leave to appeal).
State v. Colon, 8th Dist. Cuyahoga No. 103150, 2016-Ohio-707, ¶ 8.
In addition,
[a]nother interlocutory order that may become final and appealable
upon ruling is an order that grants a new trial. R.C. 2505.02(B)(3).
In State v. Matthews, 81 Ohio St.3d 375, 380, 691 N.E.2d 1041 (1998),
the Ohio Supreme Court held as follows: “We are now clarifying that
under R.C. 2505.02 and 2505.03(A), a trial court’s order granting a
defendant a new trial in a criminal case is a final appealable order
which the state may appeal by leave of court.” The Matthews court
also explained that “we have already implicitly held that R.C. 2505.02
applies to all appeals, civil and criminal.” Id. at 377.
Id. at ¶ 13.
It is important to note that the trial court, in its July 6, 2018 journal
entry, did not grant Jenkins a new trial, and there is not an order from the trial court
that grants Jenkins a new trial. Therefore, the state incorrectly argues that the
denial of the motion automatically grants Jenkins a new trial. The state could elect
to not try Jenkins again.
We cannot review the state’s claim of error, even if the state’s
argument has merit regarding an automatic retrial, because we do not have the trial
court’s reasoning for granting a retrial. “The basis for the new trial must be
specifically stated in order to allow a reviewing court to determine whether the trial
court abused its discretion in ordering a new trial. Antal v. Olde Worlde Prod., Inc.,
9 Ohio St.3d 144, 459 N.E.2d 223, syllabus (1984).” 425 Partnership v. Weston, 8th
Dist. Cuyahoga Nos. 68386 and 68498, 1996 Ohio App. LEXIS 844 (Mar. 7, 1996).
See Chaney v. Chaney, 8th Dist. Cuyahoga Nos. 70679 and 70653, 1998 Ohio App.
LEXIS 1063 (Mar. 19, 1998) (“The basis for granting a new trial must be specifically
stated in order to allow a reviewing court to determine whether the trial court
erred * * *.”). Without an order from the trial court expressly granting Jenkins a
new trial and its reasoning for doing so, this court cannot review the state’s
assignment of error because there is not a final appealable order.
For the foregoing reasons, it is our determination that the trial court’s
denial of the state’s motion to reinstate Jenkins’s convictions does not satisfy the
requirements of a final order under R.C. 2505.02(B)(3), which states,
[a]n appellate court’s jurisdiction is limited to reviewing, affirming,
modifying or reversing judgments or final orders. Section 3(B)(2),
Article IV, Ohio Constitution. See also R.C. 2505.03. R.C. 2505.02
sets forth what is meant by a final appealable order and provides in
relevant part:
“(B) An order is a final order that may be reviewed, affirmed,
modified, or reversed, with or without retrial, when it is one of the
following: * * * (3) An order that vacates or sets aside a judgment or
grants a new trial. This appeal is dismissed for lack of a final
appealable order.”
State v. Patchin, 6th Dist. Lucas No. L-00-1103, 2000 Ohio App. LEXIS 4972(Oct. 27, 2000).
Accordingly, the appeal is dismissed.
It is ordered that appellee recover of appellant costs herein taxed.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
________________________________
ANITA LASTER MAYS, JUDGE
EILEEN T. GALLAGHER, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR