State v. Szuch Fishery 12, L.L.C. ( 2024 )

[Cite as State v. Szuch Fishery 12, L.L.C., 2024-Ohio-1431.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY
STATE OF OHIO, CASE NOS. 2024-A-0010
2024-A-0011
Plaintiff-Appellant/ 2024-A-0012
Cross-Appellee,
Criminal Appeals from the
- vs - Court of Common Pleas
SZUCH FISHERY 12 LLC, et al.,
Trial Court Nos. 2023 CR 00279
Defendants-Appellees/ 2023 CR 00280
Cross-Appellants. 2023 CR 00281
MEMORANDUM
OPINION
Decided: April 15, 2024
Judgment: Appeals and Cross-Appeals dismissed
Colleen M. O’Toole, Ashtabula County Prosecutor, Christopher R. Fortunato and
Matthew J. Hebebrand, Assistant Prosecutors, 25 West Jefferson Street, Jefferson, OH
44047 (For Plaintiff-Appellant/Cross-Appellee).
Erik Wineland, Rohrbacher Trimble & Zimmerman Co., LPA, 405 Madison Avenue, 8th
Floor, Toledo, OH 43604 (For Defendants-Appellees/Cross-Appellants).
JOHN J. EKLUND, J.
{¶1} On January 22, 2024, the trial court entered a judgment ruling on four
motions: defendants’ motions 1) for Handwriting Exemplar from Matthew Faust; 2) for
review of grand jury testimony; 3) to dismiss the indictment for tampering with records;
and 4) the state of Ohio’s motion to quash defendants’ three subpoenas.
{¶2} On motion one, the court stated “Counsel conceded this motion is now moot
* * *. Therefore, the Motion is withdrawn.”
{¶3} On motion two, the court stated that “the Court concludes that Defendants
have shown a particularized need to have the grand jury transcript reviewed to determine
if the mistaken information was presented to the grand jury. A failure to review the grand
jury testimony would likely deprive the Defendants of a fair trial, and the particularized
need shown by the Defendants outweighs the need for secrecy.”
{¶4} “Therefore, Defendants’ Motion for Review of Grand Jury Testimony is
Granted. Accordingly, the Court will examine the grand jury transcript in camera * * *.
After the review * * * the Court may provide counsel with those portions of the transcript
relevant to the issue * * *. The transcript * * * shall be provided to the Court and shall
remain non-public and be filed under seal.”
{¶5} On motion three, the court stated that “Defendants’ Motion to Dismiss the
Indictment for Tampering With Records is held in abeyance” pending the in camera
review of the grand jury testimony.
{¶6} The court denied motion four, holding the documents sought were
“evidentiary and relevant” and “not otherwise procurable reasonably in advance of trial”
and were sought in good faith.
{¶7} Appellant/cross-appellee, “appellant,” has appealed from the rulings on
motions two and four. On motion two, the court made findings and ordered an in camera
review of grand jury transcripts. It did not order production of the transcripts to anyone.
That ruling is not a final appealable order. See Daher v. Cuyahoga Community College
District, 155 Ohio St.3d 271; 2018-Ohio-4462. As to motion four, the court merely denied
a motion to quash subpoenas. It neither ordered production of evidence nor prevented
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Case Nos. 2024-A-0010, 2024-A-0011, 2024-A-0012
it. That is not a final appealable order. See State v. Pecsi, 11th Dist. Geauga Nos. 2021-
G-0019, 2021-G-0020, 2021-G-0021, 2021-Ohio-3565.
{¶8} As to appellees’ cross-appeals, in the absence of a direct appeal from a
conviction, appellees do not have an immediate right to appeal. See State v. Cook, 5th
Dist. Fairfield No. 07 CA 39, 2007-Ohio-6446, ¶ 15-16.
{¶9} Further, appellees state on their cross-appeals that they are appealing the
January 22, 2024 entry “declaring that the Defendants’ Motion for a Handwriting Exemplar
withdrawn and failing to find that the State committed a fraud upon the court.” These are
pretrial matters that are not immediately appealable because appellees have not been
convicted and sentenced. See Pecsi, ¶ 11-13.
{¶10} Accordingly, the appeals and cross-appeals are dismissed for lack of a final
appealable order.
{¶11} Appeals and cross-appeals dismissed.
MARY JANE TRAPP, J.,
ROBERT J. PATTON, J.,
concur.
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Case Nos. 2024-A-0010, 2024-A-0011, 2024-A-0012