State v. Anderson , 138 Ohio St. 3d 264 ( 2014 )

[Cite as State v. Anderson, 138 Ohio St. 3d 264, 2014-Ohio-542.]
THE STATE OF OHIO, APPELLANT, v. ANDERSON, APPELLEE.
[Cite as State v. Anderson, 138 Ohio St. 3d 264, 2014-Ohio-542.]
Appellate procedure—Final orders—Denial of motion to dismiss for double
jeopardy is a final, appealable order—R.C. 2505.02(B)(4).
(No. 2012-1834—Submitted October 8, 2013—Decided February 19, 2014.)
APPEAL from the Court of Appeals for Mahoning County,
No. 11 MA 43, 2012-Ohio-4390.
_____________________
O’CONNOR, C.J.
{¶ 1} In early June 2003, Amber Zurcher was found dead in her home by
her mother. Two months later, appellee, Christopher Anderson, was arrested and
charged with Zurcher’s murder.
{¶ 2} Anderson has now been subjected to five trials in seven years. He
has been incarcerated for more than a decade, but he has never been lawfully
convicted.
{¶ 3} When the state attempted to prosecute Anderson for the sixth time,
he moved to dismiss the indictment against him. In so doing, he argued that the
prosecution was barred by the Double Jeopardy and Due Process Clauses of the
United States Constitution.
{¶ 4} Our task today is not to determine whether Anderson is guilty of
the murder, or even whether he can be forced to stand trial for a sixth time.
Rather, we answer a narrower question: Was the trial court’s order denying
Anderson’s motion to dismiss the indictment a final, appealable order that the
appellate court had jurisdiction to review? We conclude that it was.
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{¶ 5} Accordingly, we affirm the appellate court’s decision denying the
state’s motion to dismiss Anderson’s appeal, and we remand the cause to the court
of appeals to address Anderson’s appeal on its merits.
RELEVANT BACKGROUND
{¶ 6} Because the question before us is a question of law, it is not
necessary to extensively detail the facts. For our limited purposes here, we
summarize the state’s evidence against Anderson and the procedural path that
brought this appeal before us as they have been described by the appellate court’s
prior decisions.
The Murder
{¶ 7} Facts surrounding the murder and the first two trials are set forth
here as stated in the appellate court’s opinion in the appeal from the second trial.
7th Dist. Mahoning No. 03 MA 252, 2006-Ohio-4618. On June 2, 2002, Zurcher
went to Chipper’s Bar in Youngstown. There, she met several friends, including
Sandy Shingleton and John Orosz.
{¶ 8} After the bar closed, Zurcher and her friends went to Zurcher’s
apartment in Austintown, where they continued to drink. By 3:50 A.M., only
Anderson, Orosz, and Shingleton remained in Zurcher’s apartment. When they
left, Zurcher was clothed. Orosz locked Zurcher’s door from the inside, shut the
door, and checked to make sure it was locked. Anderson then drove Orosz and
Shingleton to Orosz’s pizzeria, where he dropped them off and then departed.
{¶ 9} A few hours later, Zurcher’s mother, Diane Whiteman, grew
concerned because Zurcher had not come to retrieve her son from Whiteman as
they had planned. After Zurcher did not answer or respond to Whiteman’s
repeated phone calls, Whiteman went to Zurcher’s apartment building and
secured a key to Zurcher’s apartment from the building manager.
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{¶ 10} When Whiteman entered the apartment, she found Zurcher’s
naked, dead body on the floor near the door. There were no signs of forced entry
into the apartment and no indication that Zurcher had been robbed.
{¶ 11} A deputy coroner determined that Zurcher had died around 4:00
A.M. due to asphyxiation by strangulation. Ligature marks around Zurcher’s
neck were consistent with the conclusion that Zurcher had been strangled by cord
or wire, but neither was recovered from the scene.
{¶ 12} Near the time of her death, Zurcher had also sustained a deep scalp
contusion and multiple bruises to her body. A contusion on her left breast
appeared to be a “love bite,” or “hickey.” The DNA sample taken from that site
was consistent with Anderson’s DNA profile. Zurcher’s fingernail scrapings
contained a mixture of DNA profiles consistent with the DNA of Anderson,
Zurcher’s son, and a third person. Foreign DNA was not found in Zurcher’s oral,
vaginal, or rectal cavities.
{¶ 13} Zurcher was buried on June 6, 2002. That day, Zurcher’s friends
gathered again at Chipper’s Bar. Anderson arrived wearing a jacket with long
sleeves. When he removed it, witnesses noticed that he had scratches on his hand
and arms that had not been present three days earlier.
The Trials and Appeals
{¶ 14} The first trial in this case began May 27, 2003. On the day of trial,
Anderson successfully moved in limine under Evid.R. 404 to preclude the state
from introducing evidence of prior bad acts through testimony from Donna
Dripps. The state intended to have Dripps testify that prior to Zurcher’s death,
Anderson had choked Dripps and bitten one of her breasts.
{¶ 15} Although Anderson’s motion was granted, another witness,
Nichole Ripple, testified during trial that Zurcher had called Anderson “a freak”
and that Anderson had “tried to strangle his ex-girlfriend.” That portion of
Ripple’s testimony was repeated on a local evening news broadcast. On
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Anderson’s motion, the trial court granted a mistrial based on the undue prejudice
caused by Ripple’s statement.
{¶ 16} A second trial began November 18, 2003. During the second trial,
the state was permitted to introduce the same testimony by Dripps that previously
had been excluded. The jury found Anderson guilty of murder, and the trial court
imposed a prison sentence of 15 years to life.
{¶ 17} The court of appeals, however, found error in the admission of the
bad-acts evidence. It reversed Anderson’s conviction, finding it “difficult, if not
impossible, to correlate the two opposing decisions by the trial court on this
matter.” 2006-Ohio-4618, ¶ 45. We declined to review that decision. 112 Ohio
St.3d 1443, 2007-Ohio-152, 860 N.E.2d 767.
{¶ 18} Subsequent history of the case is set forth in the opinions of the
court of appeals concerning the order now on appeal before us. 7th Dist.
Mahoning App. No. 11-MA-43, 2012-Ohio-4390.
{¶ 19} A third trial began in December 2008. The jury was unable to
return a verdict, and the court declared a mistrial.
{¶ 20} The fourth trial began in April 2010. During voir dire, defense
counsel fell asleep. The court declared a mistrial.
{¶ 21} After a fifth trial in August 2010, the jury was again unable to
reach a verdict. The court declared another mistrial.
{¶ 22} When the trial court set a sixth trial date, Anderson moved to
dismiss the indictment, asserting that making him stand trial a sixth time violated
his right to protection from double jeopardy and his right to due process. The trial
court denied the motion, and Anderson appealed.
{¶ 23} The state moved to dismiss the appeal, arguing that the denial of
Anderson’s motion to dismiss was not a final, appealable order. The court of
appeals rejected its claim, “finding that in this particular situation where there
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have been multiple mistrials, the order appealed is a final, appealable order as
defined by R.C. 2505.02.” 2012-Ohio-4390 at ¶ 1.
{¶ 24} On the state’s motion, the court of appeals sat en banc to consider
whether the order was final and appealable. The court was equally divided on the
issue; two judges agreed that the order was a final, appealable order, and two
would have held that it was not. Id. Thus, the original appellate court
determination—that the order was a final, appealable order—stood. Id. at ¶ 30.
{¶ 25} We accepted the state’s discretionary appeal, which asserts that the
denial of a motion to dismiss on due-process and double-jeopardy grounds is not a
final, appealable order pursuant to R.C. 2505.02. 134 Ohio St. 3d 1448, 2013-
Ohio-347, 982 N.E.2d 727. We disagree.
{¶ 26} We hold that the denial of a motion to dismiss on double-jeopardy
grounds is a final, appealable order. We affirm the judgment of the court of
appeals to the extent that it held that the denial of a motion to dismiss on double-
jeopardy grounds is a final, appealable order. We need not, and do not, reach the
issue of a whether a motion to dismiss on due-process grounds is also a final,
appealable order.
ANALYSIS
{¶ 27} We are presented with two important considerations: the
prudential concerns that limit which orders an appellate court can review and the
constitutional protections against double-jeopardy violations. Although we have
not specifically addressed the issue in light of the General Assembly’s most recent
amendments to the definition of “final order” in R.C. 2505.02, we do not write on
a blank slate. Indeed, we have answered this important question repeatedly, but
admittedly inconsistently, over the years.
{¶ 28} 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
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Solutions, L.L.C. v. Electronic Classroom of Tomorrow, 137 Ohio St. 3d 23, 2013-
Ohio-2410, 997 N.E.2d 490, ¶ 10.
{¶ 29} R.C. 2953.02 authorizes appellate courts to review the judgment or
final order of a trial court in a criminal case. State v. Muncie, 91 Ohio St. 3d 440,
444, 746 N.E.2d 1092 (2001). To determine whether the order issued by the trial
court in a criminal proceeding is a final, appealable order, appellate courts must
apply the definitions of “final order” contained in R.C. 2505.02. Id., citing State
ex rel. Leis v. Kraft, 10 Ohio St. 3d 34, 36, 460 N.E.2d 1372 (1984).
{¶ 30} Here, the specific question before us is whether the denial of a
motion to dismiss on double-jeopardy grounds is a final, appealable order within
the meaning of the statute.
{¶ 31} In Owens v. Campbell, 27 Ohio St. 2d 264, 272 N.E.2d 116 (1971),
syllabus, we held that an accused could invoke the original jurisdiction of Ohio’s
appellate courts through extraordinary writs to adjudicate his right against being
placed in double jeopardy. But less than a decade later, we overruled that
holding.
{¶ 32} In State v. Thomas, 61 Ohio St. 2d 254, 400 N.E.2d 897 (1980),
syllabus, we unanimously held that the accused has the right to immediately
appeal the denial of a motion to dismiss that is predicated on double-jeopardy
grounds. In so doing, we made clear the importance of providing an immediate
appeal in such a situation:
It is clear that the Double Jeopardy Clause is a guarantee
against being twice put to trial for the same offense. Abney v.
United States (1977), 431 U.S. 651, 661 [97 S. Ct. 2034, 52
L. Ed. 2d 651]. It is equally clear that an order affecting a right of
constitutional dimensions is an “order affecting a substantial
right,” within the contemplation of R.C. 2505.02. It would seem
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reasonable to conclude that some form of review prior to judgment
is necessary to preserve this right. Id. at page 660.
***
We believe that a proceeding on a motion to dismiss for
double jeopardy should be considered a special proceeding as well.
A claim of double jeopardy raises an issue entirely collateral to the
guilt or innocence of the defendant. While it is a complete
defense, it is more than that, for it, in principle, bars a new trial as
well as a new conviction. Additionally, an erroneous decision on a
double jeopardy claim cannot be effectively reviewed after
judgment within the second trial; by that time, the defendant’s
right has been violated.
We hold, therefore, that the overruling of a motion to
dismiss on the ground of double jeopardy is a final appealable
order under R.C. 2953.02 and 2505.02. Owens v. Campbell
([1971], 27 Ohio St. 2d 264 [272 N.E.2d 116]) is hereby overruled.
Id. at 258.
{¶ 33} Ten years after Thomas, we again abruptly changed course in State
v. Crago, 53 Ohio St. 3d 243, 559 N.E.2d 1353 (1990).
{¶ 34} In Crago, we held that a defendant cannot appeal the denial of a
motion to dismiss based on double jeopardy until after the trial is concluded. Our
explanation in Crago was conclusory and based solely on the definition of “final
order” in R.C. 2505.02.
{¶ 35} Specifically, we noted that R.C. 2505.03(A) directs that every
“final order” may be reviewed on appeal. At the time, “final order” was defined
as follows:
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An 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.
Former R.C. 2505.02, 1986 Am.Sub.H.B. No. 412, 141 Ohio Laws, Part II, 3563,
3597.
{¶ 36} We summarily determined that “the denial of a motion to dismiss
on the basis of double jeopardy is not a ‘final order’ with the meaning of R.C.
2953.02 as the definition of ‘final order’ contained in R.C. 2505.02 is applicable
to criminal proceedings.” Id. at 244-245. We then proceeded to overrule
Thomas, without further explication. Id. at 245.
{¶ 37} Shortly after Crago, we decided Wenzel v. Enright, 68 Ohio St. 3d
63, 623 N.E.2d 69 (1993). Applying Crago, a slim majority of this court held that
neither an extraordinary writ nor an interlocutory appeal was available to an
accused after the denial of a motion to dismiss on double-jeopardy grounds. Id. at
paragraph one of the syllabus. We held that the accused may seek review only on
direct appeal, at the conclusion of the proceedings. Id. at paragraph two of the
syllabus.
{¶ 38} Our decision in Crago has been questioned by members of this
court and the appellate courts. E.g., State v. Gunnell, 132 Ohio St. 3d 442, 2012-
Ohio-3236, 973 N.E.2d 243, ¶ 42 (Lanzinger, J., concurring) and ¶ 55 (McGee
Brown, J., concurring); State v. Anderson, 2012-Ohio-4390, ¶ 31 (DeGenaro, J.,
concurring); Mentor v. Babul, 11th Dist. Lake No. 98-L-244, 1999 WL 820583,
*4 (July 16, 1999) (holding that the denial of a motion to dismiss on double-
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jeopardy grounds is not a final, appealable order, but noting “the very persuasive
argument that can be made in support of the immediate exercise of appellate
jurisdiction” because of “the unique nature” of the motion). But in order to
resolve this appeal, we need not delve into the merits, or lack thereof, of Crago.
{¶ 39} As we have in other cases, we decide the appeal based on the new
statutory language, which altered the language that was dispositive to our decision
in Crago. See, e.g., State v. Chambliss, 128 Ohio St. 3d 507, 2011-Ohio-1785,
947 N.E.2d 651 (departing from the court’s prior holding in State ex rel. Keenan
v. Calabrese, 69 Ohio St. 3d 176, 631 N.E.2d 119 (1994), which held, under a
previous version of R.C. 2505.02, that an order denying a defendant’s counsel of
choice was not a final, appealable order).
The 1998 Amendments to R.C. 2505.02
{¶ 40} In 1998, the General Assembly amended R.C. 2505.02. 1998
Sub.H.B. No. 394, 147 Ohio Laws, Part II, 3277, 3278. The prior language of
R.C. 2505.02 “was more restrictive concerning what constitutes a final,
appealable order than the one currently in effect.” State v. Upshaw, 110 Ohio
St.3d 189, 2006-Ohio-4253, 852 N.E.2d 711, ¶ 7. Put another way, the revised
language now in place is more extensive than the language we construed in
Crago.
{¶ 41} Most notably, through Sub.H.B. No. 394, the General Assembly
expanded the definition of a “final order” to include two additional categories:
(1) orders that grant or deny a “provisional remedy” and otherwise satisfy certain
specified criteria and (2) orders that determine whether an action may be
maintained as a class action. The latter category is clearly inapplicable here, and
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our analysis will focus on whether an order that denies a motion to dismiss on
double-jeopardy grounds is a provisional remedy.1
{¶ 42} R.C. 2505.02(B)(4) provides:
(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:
***
(4) An order that grants or denies a provisional remedy and
to which both of the following apply:
(a) The order in effect determines the action with respect to
the provisional remedy and prevents a judgment in the action in
favor of the appealing party with respect to the provisional remedy.
(b) The appealing party would not be afforded a
meaningful or effective remedy by an appeal following final
judgment as to all proceedings, issues, claims, and parties in the
action.
Thus, in order to qualify as a final, appealable order under R.C. 2505.02(B)(4),
three requirements must be satisfied: (1) the order must grant or deny a
provisional remedy as that term is defined in the statute, (2) the order must in
effect determine the action with respect to the provisional remedy, and (3) the
appealing party would not be afforded a meaningful review of the decision if that
party had to wait for final judgment as to all proceedings in the action. Upshaw,
1. In so doing, we need not revisit Crago’s decision that the denial of a motion to dismiss
predicated on double-jeopardy grounds did not fall within any of the three original categories of
final orders described in R.C. 2505.02(B)(1) through (3).
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110 Ohio St. 3d 189, 2006-Ohio-4253, 852 N.E.2d 711, ¶ 15, citing Muncie, 91
Ohio St. 3d at 446, 746 N.E.2d 1092.
{¶ 43} For the reasons that follow, we conclude that the denial of a
motion to dismiss on double-jeopardy grounds satisfies these requirements.
A motion to dismiss on double-jeopardy grounds is a provisional remedy
{¶ 44} A “provisional remedy” for purposes of defining “final order” is “a
proceeding ancillary to an action.” R.C. 2505.02(A)(3).
{¶ 45} The statute sets forth as examples, introduced by the phrase
“including, but not limited to,” certain types of proceedings that fall within the
definition of an ancillary proceeding, including motions to suppress evidence.
The statutory phrase “including, but not limited to” means that the examples
expressly given are “a nonexhaustive list of examples.” (Emphasis sic.) Muncie,
91 Ohio St. 3d at 448, 746 N.E.2d 1092, citing State v. Lozano, 90 Ohio St. 3d 560,
562, 740 N.E.2d 273 (2001); Boedeker v. Rogers, 140 Ohio App. 3d 11, 18, 746
N.E.2d 625 (2000) (noting that by its express terms, the list of provisional
remedies in R.C. 2505.02(A)(3) is “illustrative and not exhaustive”). Thus, the
failure to include a motion to dismiss in the list does not undermine the notion
that a motion to dismiss is an ancillary proceeding.
{¶ 46} Because the statute does not define the term “ancillary
proceedings,” we must define it according to its plain, common, ordinary
meaning. R.C. 1.42.
{¶ 47} As we recognized in Muncie, “for purposes of R.C.
2505.02(A)(3)’s definition, ‘[a]n ancillary proceeding is one that is attendant upon
or aids another proceeding.’ ” Muncie at 449, quoting Bishop v. Dresser
Industries, 134 Ohio App. 3d 321, 324, 730 N.E.2d 1079 (1999). An ancillary
proceeding is an “ancillary suit,” Black’s Law Dictionary 101 (9th Ed.2009), i.e.,
“[a]n action, either at law or in equity, that grows out of and is auxiliary to
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another suit and is filed to aid the primary suit, to enforce a prior judgment, or to
impeach a prior decree.” Id. at 1572.
{¶ 48} We have little trouble concluding that a motion to dismiss on
double-jeopardy grounds is an ancillary proceeding.
{¶ 49} A motion to dismiss on double-jeopardy grounds “grows out of”
the primary suit, i.e., the prosecution. The act of prosecution triggers a
defendant’s constitutional protection against double jeopardy. A motion to
dismiss is certainly “attendant” upon the underlying prosecution because it is
“consequent; concomitant; associated; [and] related” to the prosecution. The
Random House Dictionary of the English Language 133 (1987).
{¶ 50} As one commentator has recognized, a motion to dismiss on
double-jeopardy grounds is
separate from and entirely collateral to the substantive issues at
trial. The defendant’s right not to be tried has nothing to do with
guilt or innocence. The proceeding on the issue is independent of
the main trial * * *. Such a position is entirely consistent with the
court’s willingness to broadly define what constitutes an ancillary
hearing and thus a “provisional remedy” under R.C.
2505.02(A)(3).
John Paul Sellers III, Between a Rock and a Hard Place: Does Ohio Revised
Code Section 2505.02 Adequately Safeguard a Person’s Right Not to Be Tried?,
28 Ohio N.U.L.Rev. 285, 299 (2002). We agree.
{¶ 51} A motion to dismiss on the basis of double jeopardy is a
provisional remedy satisfying the first prong of the analysis.
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A motion to dismiss on double-jeopardy grounds can
determine the action
{¶ 52} We thus turn to the second prong: whether the motion in effect
determines the action. Orders denying a motion to dismiss an indictment on
double-jeopardy grounds “constitute a complete, formal, and, in the trial court,
final rejection of a criminal defendant’s double jeopardy claim.” Abney v. United
States, 431 U.S. at 659, 97 S. Ct. 2034, 52 L. Ed. 2d 651. And orders granting a
motion to dismiss generally end the prosecution. We thus have no trouble
concluding that a decision on a motion to dismiss on double-jeopardy grounds
determines the action because it permits or bars the subsequent prosecution.
Absent an interlocutory appeal from
the denial of a motion to dismiss on double-jeopardy grounds,
the moving party would not be afforded meaningful review of the decision
{¶ 53} We turn now to the third and final prong of the test for final,
appealable orders for purposes of R.C. 2505.02(A)(3): whether the appealing
party would not be afforded a meaningful review of the decision if that party had
to wait for final judgment as to all proceedings in the action.
{¶ 54} The Double Jeopardy Clause of the Fifth Amendment to the United
States Constitution ensures that a state may not put a defendant in jeopardy twice
for the same offense. Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23
L. Ed. 2d 707 (1969). The “basic theory” underlying the doctrine of double
jeopardy “is that it is wrong for one to be subjected more than once to the danger
of being punished for an offense.” (Emphasis added.) State v. Best, 42 Ohio
St.2d 530, 532, 330 N.E.2d 421 (1975).
{¶ 55} The denial of an interlocutory appeal to an accused arguing that a
prosecution is barred by double jeopardy vitiates one of the very protections the
Constitution provides: the right not to be improperly forced to stand trial
repeatedly for the same offense.
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{¶ 56} As the Supreme Court has explained:
[The] protections [of the Double Jeopardy Clause] would be lost if
the accused were forced to “run the gauntlet” a second time before
an appeal could be taken; even if the accused is acquitted, or, if
convicted, has his conviction ultimately reversed on double
jeopardy grounds, he has still been forced to endure a trial that the
Double Jeopardy Clause was designed to prohibit. Consequently, if
a criminal defendant is to avoid exposure to double jeopardy and
thereby enjoy the full protection of the Clause, his double jeopardy
challenge to the indictment must be reviewable before that
subsequent exposure occurs.
(Emphasis added in part, and footnote omitted.) Abney, 431 U.S. at 662, 97 S. Ct.
2034, 52 L. Ed. 2d 651.
{¶ 57} In Wenzel, a slim majority of this court relied heavily on Crago to
hold that Abney does not mandate that a state provide a mechanism for an
interlocutory appeal from the denial of a motion to dismiss on double-jeopardy
grounds. Wenzel, 68 Ohio St. 3d at 67, 623 N.E.2d 69, fn. 1. That analysis has
been described as “superficially dismissive” and has been criticized for failing to
address the constitutional analysis set forth in Abney. Anderson, 2012-Ohio-4390,
¶ 38 (DeGenaro, J., concurring). That criticism is not unfair, particularly given
that after Crago and Wenzel, a defendant’s only way to secure pretrial judicial
review of the denial of the motion to dismiss on double-jeopardy grounds was
through federal habeas relief. See, e.g., Harpster v. Ohio, 128 F.3d 322, 326 (6th
Cir.1997); Lucas v. Hamilton Cty. Mun. Ct., S.D.Ohio No. 1:12-cv-138, 2012 WL
1986680, *4 (June 4, 2012) (in finding that the prisoner-petitioner had exhausted
his state-court remedies before seeking federal habeas relief, the court noted the
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state’s concession that there is no right to an interlocutory appeal from a motion to
dismiss on double-jeopardy grounds and rejected the state’s argument that
mandamus is available to secure pretrial review of a double-jeopardy claim). Yet
Abney makes clear that as a matter of federal constitutional law, retrial itself is
one of the harms at issue in double-jeopardy cases. That harm cannot be remedied
by a subsequent acquittal in the trial court or by the reversal of any conviction
through appeal after trial.
{¶ 58} “ ‘A post-conviction appeal may offer a remedy, but not an
adequate one * * *.’ (Emphasis sic.)” Chambliss, 128 Ohio St. 3d 507, 2011-
Ohio-1785, 947 N.E.2d 651, at ¶ 26, quoting State ex rel. Keenan, 69 Ohio St. 3d
at 180, 631 N.E.2d 119 (Pfeifer, J., dissenting). In the context of double jeopardy,
we agree that a postconviction appeal is not an adequate remedy “because the
protection against double jeopardy is not just protection against being punished
twice for the same offense, it is also the protection against being tried twice for
the same offense.” Wenzel, 68 Ohio St. 3d at 68, 623 N.E.2d 69 (Wright, J.,
dissenting).
{¶ 59} We therefore conclude that an accused would not be afforded a
meaningful review of an adverse decision on a motion to dismiss and discharge
on double-jeopardy grounds if that party must wait for final judgment as to all
proceedings in order to secure review of the double-jeopardy decision.
The Denial of a Motion to Dismiss on Double-Jeopardy Grounds
Is a Final, Appealable Order
{¶ 60} Having determined that an order denying a motion to dismiss on
double-jeopardy grounds denies a “provisional remedy” as that term is defined in
the statute, that the order in effect determines the action with respect to the
provisional remedy, and that the appealing party would not be afforded a
meaningful review of the decision if that party had to wait for final judgment as to
all proceedings in the action, we hold that the order is a final, appealable order. In
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so doing, we are not bound by Crago, which was decided on a different, narrower
statutory definition, or by Wenzel, which relied on the decision in Crago.
CONCLUSION
{¶ 61} We hold that an order denying a motion to dismiss on double-
jeopardy grounds is a final, appealable order. Thus, the trial court’s denial of
Anderson’s motion to dismiss was a final, appealable order. We therefore affirm
the order of the court of appeals and remand the cause to that court to consider
Anderson’s appeal on its merits.
Order affirmed.
PFEIFER, O’DONNELL, LANZINGER, KENNEDY, FRENCH, and O’NEILL, JJ.,
concur.
____________________
Paul J. Gains, Mahoning County Prosecuting Attorney, and Ralph M.
Rivera, Assistant Prosecuting Attorney, for appellant.
John B. Juhasz, for appellee.
Timothy Young, Ohio Public Defender, and Stephen P. Hardwick,
Assistant Public Defender, urging affirmance for amicus curiae, Office of the
Ohio Public Defender.
_________________________
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