Hudson v. Harger

[Cite as Hudson v. Harger, 2012-Ohio-2604.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
CITY OF HUDSON/STATE OF OHIO C.A. No. 26208
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
RYAN HARGER STOW MUNICIPAL COURT
COUNTY OF SUMMIT, OHIO
Appellant CASE No. 2011-CRB-02381
DECISION AND JOURNAL ENTRY
Dated: June 13, 2012
CARR, Judge.
{¶1} Appellant Ryan Harger appeals the order of the Stow Municipal Court dismissing
the criminal charges against him. This Court dismisses the appeal for lack of a final, appealable
order.
I.
{¶2} The City of Hudson charged Harger with one count of theft and one count of
aggravated menacing. The day before the matter was scheduled for trial, the trial court
dismissed the case without prejudice at the city’s request. Harger appealed. Hudson filed a
memorandum in opposition to jurisdiction, arguing that the appeal must be dismissed for lack of
a final, appealable order. Harger filed a brief in support of jurisdiction. Harger filed his
appellate brief in which he raised one assignment of error.
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II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED AS A MATTER OF LAW BY DISMISSING
THE CRIMINAL COMPLAINTS WITHOUT THE STATE OBTAINING
LEAVE OF COURT AND WITHOUT THE PROSECUTOR FILING AN
ENTRY OF DISMISSAL IN OPEN COURT IN VIOLATION OF CRIM.R.
48(A).
{¶3} Harger argues that the trial court erred by dismissing the criminal complaints in
violation of Crim.R. 48(A). Because the order appealed is not a final, appealable order, this
Court does not have jurisdiction to address the merits of Harger’s argument.
{¶4} As a preliminary matter, this Court is obligated to raise sua sponte questions
related to our jurisdiction. Whitaker-Merrell Co. v. Geupel Constr. Co., Inc., 29 Ohio St.2d 184,
186 (1972). This Court has jurisdiction to hear appeals only from final judgments. Article IV,
Section 3(B)(2), Ohio Constitution; R.C. 2501.02. In the absence of a final, appealable order,
this Court must dismiss the appeal for lack of subject matter jurisdiction. Lava Landscaping,
Inc. v. Rayco Mfg., Inc., 9th Dist. No. 2930-M, 2000 WL 109108 (Jan. 26, 2000). “An order is a
final appealable order if it affects a substantial right and in effect determines the action and
prevents a judgment.” Yonkings v. Wilkinson, 86 Ohio St.3d 225, 229 (1999).
{¶5} “[A]s a general rule, the entering of a nolle prosequi in a criminal case is not a
final appealable order. In the usual case, the entry of a nolle prosequi before the accused is
placed in jeopardy returns the parties to their relative positions prior to the institution of the
prosecution and the accused is not denied a judgment in his favor by the entry.” State v.
Williams, 9th Dist. No. 25384, 2011-Ohio-6412, ¶ 8, quoting State v. Tankersley, 8th Dist. Nos.
70068, 70069, 1996 WL 631077 (Oct. 31, 1996).
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{¶6} Harger argues that the trial court’s granting of the city’s motion to dismiss is
reviewable pursuant to the “collateral order” exception to the final-judgment rule enunciated in
Abney v. United States, 431 U.S. 651 (1977). He notes that the Eighth District Court of Appeals
recognized and applied the doctrine in Lakewood v. Pfeifer, 83 Ohio App.3d 47 (1992). The
doctrine is applied in very limited circumstances where decisions “finally determine claims of
right separable from, and collateral to, rights asserted in the action, too important to be denied
review and too independent of the cause itself to require that appellate consideration be deferred
until the whole case is adjudicated.” Abney, 431 U.S. at 658-659, quoting Cohen v. Beneficial
Industrial Loan Corp., 337 U.S. 541, 546 (1949). Both Abney and Pfeifer, however, concerned
situations in which the trial court denied the government’s motion to dismiss the indictment.
Moreover, the denial of the motion to dismiss in Abney implicated double jeopardy
considerations because the defendant had already been tried on the charges as they were initially
filed. The instant appeal is premised on the trial court’s granting the city’s motion to dismiss the
criminal complaints, not its denial.
{¶7} Harger argues that the collateral order doctrine is applicable in this case because
his speedy trial rights are implicated, he was prejudiced by being placed in jeopardy of another
prosecution, and he was prejudiced because he was precluded from presenting a defense which
he feels will prevail. First, any issues regarding speedy trial are premature, and therefore not
implicated, because there are no pending charges against Harger. Second, unlike in Abney,
double jeopardy considerations are not implicated because Harger is not in danger of being twice
put to trial for the same offense. Third, should the city refile the criminal charges against him,
Harger will have the opportunity to present any defense at that time. Harger further asserts that
the trial court’s dismissal of the charges without prejudice instead of with prejudice precludes
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him from pursuing a malicious prosecution action against the city. He does not explain,
however, how this implicates a substantial right necessitating immediate review.
{¶8} This Court recently addressed the reviewability of the trial court’s granting of the
government’s motion to dismiss criminal charges and concluded that such an order is not a final,
appealable order. Williams at ¶ 11. We reasoned that “[u]pon dismissal of the indictment, [the
defendant] was placed in the same position he was in prior to the State’s filing of criminal
charges.” Id. We, therefore, concluded that the trial court’s order dismissing the charges
without prejudice did not affect any substantial right of the defendant. Id. The same reasoning
and conclusion is applicable in Harger’s case. He remains in the same position he was in before
the city filed the charges against him. Harger does not argue that this Court should reconsider or
overrule our prior precedent; nor does he even acknowledge it. Accordingly, on the basis of our
prior authority, we conclude that the trial court’s order dismissing the charges without prejudice
does not constitute a final, appealable order. This Court, therefore, dismisses the appeal for lack
of jurisdiction.
Appeal dismissed.
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.
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Costs taxed to Appellant.
DONNA J. CARR
FOR THE COURT
WHITMORE, P. J.
DICKINSON, J.
CONCUR.
APPEARANCES:
DEAN S. HOOVER, Attorney at Law, for Appellant.
CHRISTOPHER L. PARKER, Attorney at Law, for Appellee.