State v. Ball

[Cite as State v. Ball, 2018-Ohio-4436.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
WOOD COUNTY
State of Ohio Court of Appeals No. WD-17-066
Appellee Trial Court No. 2015CR0399
v.
Amanda L. Ball DECISION AND JUDGMENT
Appellant Decided: November 1, 2018
*****
Paul A. Dobson, Wood County Prosecuting Attorney, and
David T. Harold, Assistant Prosecuting Attorney, for appellee.
Lawrence A. Gold, for appellant.
*****
SINGER, J.
{¶ 1} This matter is before the court on the motion seeking dismissal of appeal
filed by counsel for appellant, Amanda Ball, on October 15, 2018. The state of Ohio
filed a notice of death of appellant on October 17, 2018. For the following reasons, we
grant the motion to dismiss.
{¶ 2} Appellant filed a notice of appeal on November 27, 2017, from the judgment
entry of the Wood County Court of Common Pleas finding a probation violation and
imposing a prison sentence. While this appeal was pending, appellant died. Appellant’s
counsel filed a motion for notification of appellant’s possible death on October 5, 2018,
followed by a motion to dismiss appeal. The state then filed a notice of death of
appellant and requested that the appeal be deemed moot.
{¶ 3} When a criminal defendant dies while the direct appeal is pending in the
court of appeals and the state does not seek to substitute a party in place of the defendant,
the appellate court may dismiss the appeal as moot, vacate the judgment of conviction,
and dismiss the indictment. State v. McGettrick, 31 Ohio St. 3d 138, 142, 509 N.E.2d 378
(1987); App.R. 29.
{¶ 4} Here, upon review, the record shows appellant died while her direct criminal
appeal was pending in this court. The state has not asked to substitute a party, pursuant
to App.R. 29(A), in order to permit this court to proceed with the appeal. Accordingly,
we find the motion seeking dismissal of appeal filed by counsel for appellant well-taken,
and we dismiss this appeal as moot, vacate the original judgment of conviction and
dismiss all related criminal proceedings.
{¶ 5} It is so ordered.
Appeal Dismissed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Arlene Singer, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
Christine E. Mayle, P.J. JUDGE
CONCUR.
_______________________________
JUDGE
2.
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
3.