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Franklin County Criminal Law Casebook
Reproduced with permission from
Allen V. Adair and the Franklin County Public Defender Office

APPELLATE REVIEW (062)

Also see Judgment; Jurisdiction; Motions; Sentencing, Sentence appeals; Bail.

 

In general

Right to appeal and right to counsel on appeal

Final appealable order

Jurisdictional issues

Mootness

Appeals by the prosecution

Criminal Rule 12(K) interlocutory appeals

Juvenile cases

Appeal bond

Preservation of the record

Procedure

Procedure in no merit cases

Standards for review

Plain error; Structural error

Application for reconsideration

Delayed appeals

Application for reopening

Mandate; Res judicata; Law of the case doctrine

Proceedings on remand

 

R.C. 2505.02 -- Final order.

R.C. 2945.67 -- Appeal by state.

R.C. 2953.02 -- Review of judgments.

R.C. 2953.21 -- Petition for postconviction relief.

28 U.S.C. 1257 -- Certiorari.

Crim. R. 32(B) -- Notification of right to appeal.

In general

Greenlaw v. United States (2008), 128 S.Ct. 2559 – In imposing sentence the district court failed to impose the mandatory minimum term. Government did not appeal or cross appeal, though the defendant appealed. Appellate court of its own initiative could not order an increased sentence. In civil and criminal cases, in both trial courts and appellate courts the parties frame the issues for decision and the courts serve as neutral arbiters. Plain error rule does not allow the appellate court to address other issues.

DiCenzo v. A-Best Products, 120 Ohio St. 3d 149, 2008-Ohio-5327 -- Syllabus: "(1) An Ohio court decision applies retrospectively unless a party has contract rights or vested rights under the prior decision. (Peerless Elec. Co. v. Bowers (1955), 164 Ohio St. 2009…followed.) (2) An Ohio court has discretion to apply its decision prospectively after weighing the following considerations: (1) Whether the decision establishes a new principle of law that was not foreshadowed in prior decisions, (2) whether retroactive application of the decision promotes or retards the purpose behind the rule defined in that decision, and (3) whether retroactive application of the decision causes an inequitable result. (Chevron Oil Co. v. Huson (1971), 404 U.S. 97…adopted and applied.

State v. Jones, 181 Ohio App. 3d 435, 2009-Ohio-1500 – Motion to certify a conflict denied. Court ruled in the defendant‘s favor that the mens rea element for the use of a weapon element in the aggravated robbery statute is recklessness, but against the defense on the assignment of error involving that claim. Though the court‘s ruling was in conflict with the decisions of other courts, certification is not in order as the defendant did not suffer from the court‘s determination of the subordinate issue. ¶5: "When the conflicting reasons are not dispositive of both cases, a conflict need not be certified."

State v. Gaines, 193 Ohio App. 3d 260, 2011-Ohio-1475 -- App. R. 3(C)(2) allows a court of appeals to consider cross-arguments by appellees even when there has not been a cross appeal. This is permitted only when the court has otherwise determined to reverse.

State v. Burnett (2001), 93 Ohio St. 3d 419 -- The Supreme Court of Ohio is not bound by rulings on federal constitutional or statutory law made by a federal court other than the United States Supreme Court. However, such decisions will be accorded some persuasive weight.

State v. Campbell (2000), 90 Ohio St. 3d 320, 324 -- Invited error occurs when a party asks the court to take some action later claimed to be erroneous, or affirmatively consents to a procedure proposed by the trial judge. Also see State v. Murphy (2001), 91 Ohio St. 3d 516, 535.

In re Moore, 158 Ohio App. 3d 679, 2004-Ohio-4544, ¶ 24 -- Generally a Supreme Court decision interpreting a statute is retrospective as it reflects an interpretation of the correct interpretation of the provision. An exception is made if all of the following are met: (1) The decision is one of first impression that was not clearly foreshadowed. (2) Retrospective application will retard application of the statute, in view of its prior history, purpose, and effect. (3) Retrospective application will produce substantial injustice or hardship.

State v. Taylor, Erie App. No. E-02-045, 2003-Ohio-3682 -- Civil Rule 58(B) notice requirement applied to rulings on motions for DNA testing and postconviction relief which were summarily overruled. Time for filing notice of appeal only begins to run after the clerk of courts served the orders on the defendant.

State v. Latson (1999), 133 Ohio App. 3d 475, 483 -- Concurring judge explains why it is not his practice to mention the trial court judge by name in appellate opinions. Also see Miller v. Miller (2000), 139 Ohio App. 3d 512, 521.

Toledo v. Crenshaw, Lucas App. No. L-02-1208, 2003-Ohio-306 -- A party does not have standing to appeal a ruling that was not adverse to him. Defendant wanted to challenge the manner in which parking tickets are handled, but municipal court dismissed the complaint. Also see Gabriel v. Youngstown (1996), 75 Ohio St. 3d 618, 619; Ohio Contract Carriers Association v. Public Utilities Commission (1942), 140 Ohio St. 160, syllabus.

State v. Smith, Seneca App. No. 13--3-25, 2003-Ohio-5461, ¶ 25 -- "...(A)n appellant usually does not have standing to argue issues affecting another person." Also see State v. Anderson, 154 Ohio App. 3d 789, 2003-Ohio-5439, ¶ 38 (statements taken in violation of codefendant's right to counsel); In re 1995 Mercedes C280, 168 Ohio App. 3d 48, 2006-Ohio-1565 (forfeiture of car defendant used in committing offenses, but did not own).

State ex rel. Slagle v. Rogers, 103 Ohio St. 3d 89, 2004-Ohio-4354 -- Syllabus: "When a party to an action requests copies of a court transcript of the proceedings in that action, R.C. 149.43 is superseded by R.C. 2301.24, and the party must pay the official court reporter the fees designated by the court pursuant to the latter statute." Specific statute governs over the general statute as to transcripts. However, tapes are not included, so a copy must be furnished at the cost of duplication.

State v. Yeager, Carroll App. No. 03 CA 786, 2004-Ohio-4406, ¶ 2 -- "...App. R. 25 only authorizes the certification of a conflict between the opinions of two or more courts of appeal, and not between a court of appeals and the Ohio Supreme Court."

State v. Lett, 161 Ohio App. 3d 274, 2005-Ohio-2665 -- The Cuyahoga County Court of Appeals uses a long standing en banc procedure to resolve conflicting decisions within the district. Dissent at ¶74-97 discusses why this procedure is unauthorized and unwise.

In re J.J., 111 Ohio App. 3d 205, 2006-Ohio-5484 -- The procedure available for certified conflicts among appellate districts does not apply to conflicts within a single district. Paragraph two of the syllabus: "Appellate courts are duty-bound to resolve conflicts within their respective appellate districts through en banc proceedings." Also see In re C.F., 113 Ohio St. 3d 73, 2007-Ohio-1104, ¶40.

State ex rel. Everhart v. McIntosh, 115 Ohio St. 3d 195, 2007-Ohio-4798, ¶14 -- A premature notice of appeal does not divest the trial court of authority to proceed as the appeal has not been perfected.

Cassidy v. Glossip (1967), 12 Ohio St. 2d 17 -- Paragraph six of the syllabus: "The syllabus of a decision of the Supreme Court of Ohio states the law of the case." See Rule 1, Supreme Court Rules for the Reporting of Opinions.

State v. Boggs (1993), 89 Ohio App. 3d 206, 213 -- "Where the justice writing an opinion discusses matters or gives expression to views on issues not carried into the syllabus, it is merely the personal opinion of the justice...Those observations or opinions are not binding on inferior courts...Be that as it may...(a)ny court which disregards the Supreme Court's discussion of certain issues merely on the basis that it was not carried into the syllabus would be treading on dangerous and unstable ground."

State v. George (1975), 50 Ohio App. 2d 297, 305-312 -- While reported decisions may generally be of greater weight, unreported decisions of the Franklin County Court of Appeals may be cited as precedent and relied upon as such by the courts of this county. (Note: Current status of unreported decisions is set forth in Rule 2(G) of the Supreme Court Rules for the Reporting of Opinions. Unpublished opinions are considered persuasive authority, but are not controlling except as between the parties involved. Reported decisions are controlling, but only within the district in which they were decided.)

State v. Glover (1978), 60 Ohio App. 2d 283, 287 -- Decisions of the U.S. Court of Appeals may be persuasive, but are not controlling.

State v. Pembaur (1982), 69 Ohio St. 2d 110 -- A majority of the court of appeals judges hearing a case are required to render a judgment. A judgment must be vacated if a member of the panel resigns before judgment is rendered and the remaining two judges split.

State v. Smith (1997), 80 Ohio St. 3d 89 -- Direct appeal to the Supreme Court in death penalty cases is not cruel and unusual punishment, and violates neither due process nor equal protection.

State v. Lazarro (1996), 76 Ohio St. 3d 261, 265 -- Court rejects retroactivity claim based on application of a Supreme Court decision issued following conviction but before appellate review. "The general rule is that a decision of a court of supreme jurisdiction overruling a former decision is retrospective in its operation, and the effect is not that the former was bad law, but that it never was the law." Peerless Elec. Co. v. Bowers (1955), 164 Ohio St. 209, 210..." See dissent for arguments why the defendant's acts should not have been punishable as falsification.

City of Hubbard v. Luchansky (1995), 102 Ohio App. 3d 410 -- While an appellate court may take judicial notice of a matter even if the trial court failed to do so, this has generally been limited to matters bearing on legal issues. Noting the lack of Ohio authority on point, court elects to follow precedent from other states that where a trial court has failed to take judicial notice of a matter bearing on an issue of fact, the appellate court will not take judicial notice of that matter.

Tallmadge v. McCoy (1994), 96 Ohio App. 3d 604 -- Absence of file stamp is not critical to determination whether appeal was filed in a timely manner where the court's certified record established the date the order appealed from was entered.

In re Miami County Grand Jury Directive to Creager (1992), 82 Ohio App. 3d 269 -- Person found in contempt for refusal to supply handwriting exemplar is entitled to appointment of counsel for purposes of appeal.

State v. Thomas (1996), 111 Ohio App. 3d 515 -- Trial court corrected sentence while motion for reopening was pending in the court of appeals and a notice of appeal to the Supreme Court had been filed. Trial court had not lost jurisdiction. Supreme Court had not yet exercised its discretion to accept jurisdiction, nor had court of appeals assumed jurisdiction by granting the motion to reopen. Compare State v. Richard (1996), 113 Ohio App. 3d 141 where court was held without jurisdiction to vacate plea and conduct further proceedings after notice of appeal had been filed.

State v. Watson (1975), 48 Ohio App. 2d 110 -- Trial court is without authority to dismiss action on defense motion while prosecution's appeal is pending. Also see Vavrina v. Greczanik (1974), 40 Ohio App. 129, 132 (motion for relief from judgment in a civil case).

In re Terrance P. (1997), 124 Ohio App. 3d 487 -- Attorney signed juveniles name to a pro se notice of appeal. (1) Trial court was without authority to dismiss appeal. (2) By virtue of Civ. R. 11 an actual signature was required, but the defence may be remedied by leave of court.

State v. Woodruff (1983), 10 Ohio App. 3d 326, 327 -- "...(T)he rule of 'invited error,' a corollary of the principle of equitable estoppel, prohibits a party who induces error from taking advantage of such error on appeal. See 5 Ohio Jurisprudence 3d, Appellate Review, Section 543 et seq." Also see State v. Hill (1987), 37 Ohio App. 3d 72; State v. Beaver (1997), 119 Ohio App. 3d 385, 395.

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Right to appeal and right to counsel on appeal

State ex rel. Sapp v. Franklin County Court of Appeals, 118 Ohio St. 3d 368, 2008-Ohio-2637 – A party declared a vexatious litigator by a trial court must seek leave to appeal from the court of appeals and obtain leave in time for the notice of appeal to be timely. Writ of prohibition issued to prevent court of appeals from proceeding.

State v. Underwood, 124 Ohio St. 3d 365, 2010-Ohio-1 – Syllabus: “(1) When a sentence is imposed for multiple counts of offenses that are allied offenses of similar import in violation of R.C. 2941.25(A), R.C. 2953.08(D)(1) does not bar appellate review of that sentence even though it was jointly recommended by the parties and imposed by the court. (2) A sentence is ‘authorized by law’ and is not appealable within the meaning or R.C. 2953.08(D)(1) only if it comports with all mandatory sentencing provisions.” State conceded that two of the offenses pled to were allied offenses of similar import. Court imposed concurrent sentences within the maximum set forth in the plea agreement. ¶27: Courts are under a duty to merge counts at sentencing. ¶29: Parties could have stipulated the offenses did not merge. ¶31: Reversible as plain error. Even though counts were concurrent, “a defendant is prejudiced by having more convictions than are authorized by law.”

Halbert v. Michigan (2005), 125 S.Ct. 2582 -- A defendant has the right to appointed counsel in order to pursue leave to appeal from a guilty or no contest plea. Michigan provides for appeals as of right from trials, but requires leave to appeal when there has been a plea. The trial court refused to appoint counsel. First level appeals are calculated to correct error, and as with other first level appeals there is a right to appointed counsel, even though leave is a matter of discretion. Second level discretionary appeals are addressed to matters of broad public interest or to resolving conflicts, which is the rationale for there not being a right to appointed counsel at that stage.

State v. Ferguson, 108 Ohio St. 3d 451, 2006-Ohio-1502, ¶97 -- There is no constitutional right to self-representation in a direct appeal. See Martinez v. California Court of Appeal, Fourth Appellate District (2000), 528 U.S. 152, 163. Nor is there a right to hybrid representation when the defendant is represented by counsel.

Abney v. United States (1977), 431 U.S. 651, 656 -- There is no constitutional right to appeal. The right to appeal in a criminal case is established by statute. Also see McKane v. Durston (1894).

Douglas v. California (1963), 372 U.S. 353 -- An indigent has a right to appointed counsel for the direct appeal of a conviction in state courts.

Ross v. Moffitt (1974), 417 U.S. 600 -- Right to appointed counsel does not extent to discretionary appeal to state supreme court. Also see Wainwright v. Torna (1982), 455 U.S. 586.

Evitts v. Lucey (1985), 469 U.S. 387 -- Right to counsel on appeal encompasses the right to effective assistance of counsel and not mere nominal representation.

Jones v. Barnes (1983), 463 U.S. 745 -- Counsel appointed to prosecute an appeal from a criminal conviction does not have a duty to pursue every non-frivolous issue the client wishes to raise.

Roe v. Flores-Ortega (2000), 528 U.S. 470, 120 S.Ct. 1029, 1036 -- "...(C)ounsel has a constitutionally-imposed duty to consult with the defendant about an appeal whether there is reason to think either (1) that a rational defendant would want to appeal (for example, because there were nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing." To show prejudice, a defendant must show that but for counsel's omission he would have appealed in a timely manner.

Martinez v. Court of Appeal of California (2000), 120 S.Ct. 684 -- The right to self-representation at the trial level does not extend to appeals. Neither the Sixth Amendment not the Due Process Clause of the Fourteenth provide a right to self representation, though state constitutions may be interpreted to do so. Faretta v. California (1974), 422 U.S. 806, distinguished.

State v. McKinney (October 31, 1978), Franklin Co. App. No. 78AP-121, unreported (1978 Opinions 3103, 3104) -- "Although a defendant must be able to counsel with his attorney in preparing his defense at the trial stage, the same necessity does not exist at the appellate level." Defendant had been hospitalized due to a psychotic disturbance.

State v. Ashworth (1999), 85 Ohio St. 3d 56, 64 -- "...(A) defendant cannot waive this court's review of his death sentence, though he can waive review of his conviction. R.C. 2929.05(A)."

State v. Butts (1996), 112 Ohio App. 3d 683 -- Following a guilty verdict, the defendant agreed not to appeal in exchange for dismissal of a specification alleging a prior aggravated felony conviction. The right to appeal may be voluntarily waived. The agreement could be specifically enforced.

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Final appealable order

Rothman v. Rothman, 124 Ohio St. 3d 109, 2009-Ohio-6410 – The right to appeal must include a reasonable opportunity to file a timely appeal. Due to a change in precedent a divorce decree incorporating a separate qualified domestic relations order became a final appealable order before the Qualified Domestic Relations Order was filed. Husband waited and filed his notice of appeal shortly after this was done. The following day the Supreme Court issued a decision holding time ran from the filing of the decree. The court of appeals applied this case retroactively and dismissed the appeal as untimely. Reversed. Courts of appeal are directed to afford a remedy to others similarly situated.

State v. Baker, 119 Ohio St. 3d 197, 2008-Ohio-3330, 893 N.E.2d 163, – Judgment entry did not set forth the defendant‘s initial plea of not guilty. On motion of the prosecutor the Court of Appeals dismissed for want of a final appealable order. Criminal Rule 32© calls for the judgment entry to include the plea. Court decides the plea need not always be included, and that a judgment entry of conviction must be a single document. Syllabus: "A judgment of conviction is a final appealable order under R.C. 2505.02 when it sets forth (1) the guilty plea, the jury verdict, or the finding of the court upon which the conviction is based; (2) the sentence; (3) the signature of the judge; and (4) entry on the journal by the clerk of court. (Crim. R. 32(C), explained.)"

State v. Ketterer, 126 Ohio St. 3d 448, 2010-Ohio-3831 – The Supreme Court affirmed the defendant’s death sentence in 2006, but remanded for resentencing on non-capital counts based on State v. Foster. The entry from resentencing failed to mention the defendant’s guilty pleas when his case was tried to a three judge panel in 2004, but the panel’s opinion at that time supporting imposition of the death penalty did set forth the guilty pleas. While State v. Baker calls for a single document including the plea, verdict, or finding, as well as the sentence, signature of the judge, and entry upon the journal by the clerk, in death penalty cases, in death cases the reviewing court may look at both the entry and the opinion. Syllabus: “In cases in which R.C. 2929.03(F) requires the court or panel to file a sentencing opinion, a final appealable order consists of both the sentencing opinion filed pursuant to R.C. 2929.03(F) and the judgment of convictions filed pursuant to Crim. R. 32(C).”

State v. Stults, 195 Ohio App. 3d 468, 2011-Ohio-4328, 960 N.E.2d 1015, (3rd Dist) – Forfeiture is a penalty. Applying the one document rule of State v. Baker, 119 Ohio St. 3d 197, 2008-Ohio-3330, 893 N.E.2d 163, a forfeiture order must be incorporated in the judgment entry. Because it was a separate document in this case appeal is dismissed for want of a final appealable order. Compare State v. Walker, 5th Dist. No. 12CA0001, 2012 WL 2050864 (June 6, 2012) – Where the amended entry incorporated the forfeiture order.

Strongsville v. Feliciano, 194 Ohio App. 3d 476, 2011-Ohio-5394 – Defendant wanted to appeal a disorderly conduct conviction. Court of appeals dismisses for want of a final appealable order. ¶4: “A trial judge’s handwritten notations made on a case file are insufficient to serve as a judgment entry unless those notations have been time stamped by a court clerk

State v. Bedford, 184 Ohio App. 3d 588, 2009-Ohio-3972 – Trial court erroneously attached three years of mandatory postrelease control to a non-sex-offense F-4. Instead of reversing, the court finds this rendered the judgment void. Thus there was no final appealable order. Court vacates the judgment and does not rule on the remaining assignments of error. Also see State v. Holcomb, 184 Ohio App. 3d 577, 2009-Ohio-3187.

State v. Tate, 179 Ohio App. 3d 71, 2008-Ohio-5686 – Confession was suppressed. The state appealed and lost. When the defendant moved for discharge the state countered it now had sufficient evidence to proceed, and further filed a Civil Rule 60(B) motion for relief from judgment with respect to suppression. Both motions were denied. Defendant appealed and the state "cross-appealed." (1) For the defendant, there was no final appealable order. (2) The state‘s appeal was untimely. The time for seeking leave to appeal is not extended by characterizing a motion filed after thirty days as a cross-appeal which would be timely if filed within ten days of the defendant‘s notice. Nor may the state stretch the time for filing based on Civ.R. 58(B)‘s service requirement, because despite reliance on a civil rule this is not a civil case.

State v. Rice, 180 Ohio App. 3d 599, 2009-Ohio-162 – Defendant‘s application for intervention in lieu of conviction was denied without a hearing. Subsequently she entered a negotiated plea and appealed. Court rejects the prosecutor‘s claim that the denial did not constitute a final appealable order because denial without a hearing was allowed, and thus a substantial right was not affected. At ¶26: "The state‘s argument misses a critical point. Defendant‘s appeal is not from the trial court‘s November 20, 2007 decision and order denying her request for intervention in lieu of conviction. Rather, defendant appeals from the trial court‘s May 14, 2008 judgment entry and sentence, which is a final appealable order, assigning as error that the court abused its discretion in denying defendant‘s request for intervention in lieu of conviction. The issue is whether the final order is tainted by an abuse of discretion in the trial court‘s denial of defendant‘s motion for intervention in lieu of conviction."

State v. Muncie (2001), 91 Ohio St. 3d 440 -- Syllabus: "(1) A petition for forced medication under R.C. 2945.38 is a 'provisional remedy' ancillary to the criminal case undertaken by the state against an incompetent defendant. (R.C. 2905.02[A][3] construed.) (2) When a trial court orders an incompetent defendant to be forcibly medicated with psychotropic drugs in an effort to restore the defendant to competency, that order is final and appealable. (R.C. 2905.02[B][4] construed.)" State v. Hunt (1976), 47 Ohio St. 3d 170, concerning orders relating to place of commitment, distinguished on the basis that forced medication represents a severe interference with interests protected by the Due Process Clause.

State v. Williams, Lucas App. Nos. L-03-1070, 1071, 2003-Ohio-2533 -- A trial court order disqualifying appointed counsel is not a final appealable order.

State v. Roble, Lucas Ap. No. L-04-1219, 2004-Ohio-5404 -- Denial of a motion for admission pro hac vice in a criminal case is not a final appealable order.

Youngstown v. Ortiz, 153 Ohio App. 3d 271, 2003-Ohio-2238 -- Order that accused misdemeanant begin treatment to make him competent to stand trial deemed a final appealable order.

State v. Coffman (2001), 91 Ohio St. 3d 125 -- Syllabus: "A trial court's order denying shock probation pursuant to former R.C. 2947.061(B) is not a final appealable order." This is said to be regardless of whether the denial constitutes a constitutional or statutory violation. Reasoning is that within the meaning of R.C. 2505.02(A)(2) the denial flows from a special proceeding but does not affect a substantial right. Three justices would hold denial is a final appealable order pursuant to R.C. 2505.02(B)(4). Also see State v. Singh (2001), 146 Ohio App. 3d 38.

State v. Woods (2001), 141 Ohio App. 3d 549 -- The denial of judicial release is not a final appealable order. Also see <State v. Greene 2nd Dist. No. 02-CA-17, 2002-Ohio-2595>.

State v. Ricciardi (1999), 135 Ohio App. 3d 155 -- The overruling of a motion to suppress evidence in an OMVI case is does not qualify as an order denying a provisional remedy and thus is not a final appealable order under revised R.C. 2505.02. See dissent.

State v. Hubbard (1999), 135 Ohio App. 3d 518 -- The overruling of a motion to dismiss on the basis of double jeopardy does not qualify as an order denying a provisional remedy. Also see State v. Hubbard, 150 Ohio App. 3d 623, 2002-Ohio-6904, ¶ 40-51 concluding prosecutor's questions were not calculated to goad the defense into moving for a mistrial.

Westfall v. Cross (2001), 144 Ohio App. 3d 211 -- Unqualified denial of pro hac vice status is a final appealable order.

State v. Pasqualone (2000), 140 Ohio App. 3d 650 -- Denial of a motion to vacate court costs is not a final appealable order. Even if it were, res judicata would ban consideration of any claim which could have been raised in an appeal from the initial judgment.

McCowan v. McCowan (2001), 145 Ohio App. 3d 170 -- If objections to a magistrate's decision are pending there is no final appealable order.

State v. Keith, Cuyahoga App. No. 81125, 2002-Ohio-7250 -- Where the record does not reflect reassignment of the case to a visiting judge, any order by the visiting judge is void and not appealable.

State v. Nowak, 151 Ohio App. 3d 652, 2003-Ohio-681 -- An administrative license suspension linked to a charge of driving while intoxicated is a separate civil proceedings. Notice of appeal must be filed within thirty days.

State v. Stuber, Hancock App. No. 5-02-49, 2003-Ohio-2938 -- In a traffic case, bond forfeiture without the entry of conviction is not a final appealable order.

State v. Sharrar, Lucas App. No. L-03-1257 -- An entry finding the state has proven identity in an extradition case is not a final appealable order.

Parma v. Blatnica, Cuyahoga App. No. 84661 -- Magistrate signed the line allocated for the judge's signature adopting the magistrate's action. Appeal dismissed for lack of a final appealable order.

State v. Gilmer, 160 Ohio App. 3d 75, 2005-Ohio-1387 -- Failure to include a mandatory license suspension in the judgment entry renders the judgment void, and, thus, not a final appealable order.

State v. Harris (1981), 2 Ohio App. 3d 48 -- The judgment entry must be filed before an appeal can be perfected.

State v. Dickey (1991), 74 Ohio App. 3d 587 -- Judgment must explicitly state that the defendant has been found guilty to constitute a final appealable order.

State v. Brown (1989), 59 Ohio App. 3d 1 -- Judgment of trial court is not final unless judgment entry disposes of each charge.

State v. Henderson (1979), 58 Ohio St. 2d 171 -- A judgment of conviction requires both a guilty verdict and a sentence.

In re Sekulich (1981), 65 Ohio St. 2d 13 -- To be appealable, a finding of delinquency requires that a disposition be made. Also see In re Whittington (1969), 17 Ohio App. 2d 164; In re Bolden (1973), 37 Ohio App. 2d 7.

In re Murray (1990), 52 Ohio St. 3d 155 -- An adjudication that a child is neglected or dependent, accompanied by a disposition awarding temporary custody to a children services agency is a final appealable order.

State ex rel. Wright v. Ohio Adult Parole Authority (1996), 75 Ohio St. 3d 82 -- Paragraph one of the syllabus: "Civ. R. 54(B) applies in determining the appealability to the Supreme Court of orders in original actions, such as mandamus, entered by a Court of Appeals."

North Canton v. Hutchinson (1996), 75 Ohio St. 3d 112 -- Syllabus: "Absent explicit review and judgment by a trial court, a directive issued by a jail authority releasing a defendant and suspending the commencement of his or her sentence because the jail is at maximum capacity and cannot accommodate the defendant is not an 'order' that may be appealed. (R.C. 2505.03[A] and 2505.02, construed and applied.)"

Polikoff v. Adam (1993), 67 Ohio St. 3d 100 -- Syllabus: "Orders that are entered in actions that were recognized at common law or in equity and were not specially created by statute are not orders entered in a special proceedings pursuant to R.C. 2505.02. (Amato v. General Motors Corp. [1981], 67 Ohio St. 2d 253...overruled.)"

State v. Crago (1990), 53 Ohio St. 3d 243 -- Syllabus: "The overruling of a motion to dismiss on grounds of double jeopardy is not a final appealable order. (R.C. 2505.02, construed and applied; State v. Thomas [1980]. 61 Ohio St. 2d 254...paragraph one of the syllabus, overruled.) Compare Abney v. United States (1977), 431 U.S. 651.

State v. Myers (1994), 92 Ohio App. 3d 750 -- Applying Polikoff v. Adam (1993), 67 Ohio St. 3d 100, the prosecutor may not take an interlocutory appeal from an order that grand jury minutes be disclosed to the defense.

State v. Port Clinton Fisheries (1984), 12 Ohio St. 3d 114 -- Syllabus: "A trial court order compelling the government to disclose the identity of a confidential informant is a final appealable order."

State v. Johnson (1984), 10 Ohio St. 3d 34 -- Ruling that defendant be administered a polygraph examination at state expense and that results may be admissible is a final appealable order from which prosecutor may seek leave to appeal.

In re Grand Jury (1996), 76 Ohio St. 3d 236 -- Applying Polikoff v. Adam (1993), 67 Ohio St. 3d 100, the denial of a motion to quash a grand jury subpoena duces tecum is not a final appealable order. Grand jury proceedings existed at common law, and thus are nor special proceedings.

State ex rel. Keenan v. Calabrese (1994), 69 Ohio St. 3d 176 -- The trial court granted the prosecution's motion to disqualify retained counsel of choice based upon a claimed conflict of interest. Held that this ruling was not a final appealable order and that a writ of prohibition or mandamus would not issue as an appeal after trial would furnish an adequate remedy at law. Also see State v. Keenan (1998), 81 Ohio St. 3d 133, 136-137 upholding disqualification.

State v. George (1994), 98 Ohio App. 3d 371 -- Defendant was convicted of per se and impaired driving OMVI charges, but sentenced on only one. Though the offenses would have merged, absence of sentence as to one charge meant there was no final appealable order.

Cleveland v. Trzebuckowski (1999), 85 Ohio St. 3d 524 -- Notice of appeal was filed more than thirty days after the court's decision was made known, but before it was journalized. Appeal was timely. The notice was premature rather than late, and was to be treated as filled immediately upon the journalization of the entry.

In re Zakov (1995), 107 Ohio App. 3d 716 -- An entry merely incorporating the recommendations of a referee's report does not constitute a final appealable order. Statement that restitution is to be determined in the future renders the entry interlocutory.

In re Mitchell (1994), 93 Ohio App. 3d 153 -- No final appealable order where signature is rubber stamped instead of actually signed by the judge.

State v. Hunt (1976), 47 Ohio St. 2d 170 -- Finding that the defendant is not competent to stand trial is not a final appealable order. Also see State v. Scott (1984), 20 Ohio App. 3d 215; Inskeep v. State (1880), 35 Ohio St. 482 and 36 Ohio St. 145; State v. Hagert (1944), 144 Ohio St. 316; State v. Hunt (1976), 47 Ohio St. 2d 170.

State v. Yee (1989), 55 Ohio App. 3d 88 -- Ruling on motion for continuance is not a final appealable order.

State, ex rel. Eberling, v. Nugent (1988), 40 Ohio St. 3d 129 -- A ruling on motion to consolidate is not a final appealable order.

Middletown v. Jackson (1983), 8 Ohio App. 3d 431 -- Ruling on motion to dismiss on speedy trial grounds is not a final appealable order.

State v. Hawkins (1986), 30 Ohio App. 3d 259 -- Overruling of motion to dismiss specification not a final appealable order.

State v. Rudge (1993), 89 Ohio App. 3d 429, 432-436 -- Mistrial was declared following a guilty verdict at the guilt phase of a capital case, but before the penalty phase, based on juror misconduct. Held to be a final appealable order, though by leave of court and not as a matter of right.

State v. Chamberlain (1964), 177 Ohio St. 104 -- Ruling made before sentencing on motion to withdraw guilty plea is not a final appealable order.

Lakewood v. Pfeifer (1992), 83 Ohio App. 3d 47 -- Refusal to grant a nolle at the request of the prosecutor is a final appealable order.

State v. McLaughlin (1997), 122 Ohio App. 3d 418 -- Though neither revocation of bond nor the entry of a nolle prosequi is a final appealable order, the revocation of bond coupled with a nolle is.

State v. Chalender (1994), 99 Ohio App. 3d 4 -- Denial of a motion for treatment in lieu of conviction is not a final appealable order.

State v. Matthews (1998), 81 Ohio St. 3d 375 -- Syllabus: "Pursuant to R.C. 2505.02 and 2505.03(A), a trial court's order granting the defendant a new trial in a criminal case is a final appealable order which the state may appeal by leave of court. (State v. Huntsman [1969], 18 Ohio St. 2d 206...no longer applicable.)

State v. Brandon (1993), 86 Ohio App. 3d 671 -- Adverse ruling on a motion for super-shock probation is a final appealable order.

State v. Bissantz (1987), 30 Ohio St. 3d 120 -- State may appeal ruling on expungement motion as a matter of right as such proceedings are civil in nature and not subject to R.C. 2945.67.

In re Becker (1974), 39 Ohio St. 2d 84 -- Bindover order of Juvenile Court is not a final appealable order.

In re Hartman (1983), 2 Ohio St. 3d 154 -- Syllabus: "R.C. 2505.02 grants the courts of appeals jurisdiction over appeals from juvenile court judgments and final orders rendered in juvenile traffic offender proceedings."

In re Devlin (1992), 78 Ohio App. 3d 543 -- Child was found unruly and final disposition was transferred to another county, which had not yet determined whether or not to accept jurisdiction. The court also issued a temporary custody order in favor of the child's father who lived in that county. Neither ruling was a final appealable order.

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Jurisdictional issues

State v. Davis, 131 Ohio St. 3d 1, 2011-Ohio-5028 -- Syllabus: “(1) Pursuant to Sections 2(B)(2)(c) and 3(B)(2), Article IV of the Ohio Constitution, a court of appeals has jurisdiction, in a case in which a death penalty has been imposed, to consider the appeal of a trial court’s denial of a motion for a new trial based on newly discovered evidence. (2) A trial court has jurisdiction to decide a motion for a new trial based on newly discovered evidence in a case in which the death penalty has been affirmed on appeal.”

State v. Kirkland, 191 Ohio App. 3d 358, 2010-Ohio-5729 – Capital and non-capital indictments were joined for trial. Death penalty was imposed. Appeal of non-capital indictment lies to the Supreme Court, not the Court of Appeals.

State v. Howard, 174 Ohio App. 3d 562, 2007-Ohio-4334, ¶7-10 – Defendant claimed retroactive application of the State v. Foster excised sentencing statutes operated as an ex post facto. Claim is beyond the jurisdiction of a Court of Appeals, which may not review the judgments of the Supreme Court.

State v. Ward, 187 Ohio App. 3d 384, 2010-Ohio-1794 -- Original judgment entry set forth a one year mandatory term of imprisonment. Once the case was on appeal that court lost jurisdiction to remedy that mistake through a nunc pro tunc entry.

State v. Fawcett (2001), 91 Ohio St. 3d 1 -- Syllabus: "Courts of appeals have jurisdiction to review judgments entered by those inferior courts located within the territorial boundaries of their appellate districts." Thus where a municipal court has jurisdiction spreading over more than one county, appeal lies to the appellate district within which the court sits.

Yee v. Erie County Sheriff's Department (1990), 51 Ohio St. 3d 43 -- When a case has been appealed the trial court retains all jurisdiction not inconsistent with the Court of Appeals' jurisdiction to reverse, modify of affirm the judgment on appeal. Thus the trial court retained jurisdiction to rule upon pretrial motions which were not the subject of an interlocutory appeal taken by the state.

State v. Marvin (1999), 134 Ohio App. 3d 63, 66 -- Once the defendant perfects an appeal from the sentence imposed, any action by the trial court on the sentence is inconsistent with the jurisdiction of the appellate court to reverse, modify or affirm that judgment. Any judgment resulting from such further proceedings is void.

Howard v. Catholic Social Services of Cuyahoga County (1994), 70 Ohio St. 3d 141, 146-147 -- A pending appeal divests the trial court of jurisdiction to consider the merits of a Civ. R. 60(B) motion for relief from judgment.

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Mootness

Cleveland Heights v. Lewis, 129 Ohio St. 3d 389, 2011-Ohio-2673 – The Eighth District en banc held an appeal is moot when a misdemeanor defendant completes the sentence without seeking a stay in the Court of Appeals and is unable to demonstrate a particular civil disability or loss of rights or specific to him arising from the conviction. Reversed. Syllabus: “(1) The completion of a sentence is not voluntary and will not make an appeal moot if the circumstances surrounding it demonstrate that the appellant neither acquiesced in the judgment nor abandoned the right to appellate review, that the appellant has a stake in the judgment of conviction, and that there is subject matter for the appellate court to decide. (2) The expiration of an inactive period of probation during the pendency of an appeal does not render the appeal moot because the misdemeanant failed to file a motion for a stay in the appellate court where the misdemeanant unsuccessfully sought a stay of execution from the trial court to prevent an intended appeal from being declared moot and subsequently filed a notice of appeal to challenge the conviction.” Case below: Cleveland Heights v. Lewis, 187 Ohio App. 3d 786, 2010-Ohio-2208.

State v. Byrd, 185 Ohio App. 3d 30, 2009-Ohio-5606, ¶12 – “Where the defendant is sentenced only to time involuntarily served prior to conviction, the Mootness doctrine does not apply.” Citing State v. Benson (1986), 29 Ohio App. 3d 109.

Turner v. Rogers (2011), 131 S.Ct. 2507 – A case remains alive when the challenged action is of such brief duration that it may not be fully litigated before its expiration. Prison sentence for child support contempt had been served by the time the case was addressed by the Supreme Court.

In re S.J.K., 114 Ohio St. 3d 23, 2007-Ohio-2621 -- Syllabus: "The imposition of points on a traffic offender's driving record is a statutorily imposed penalty sufficient to create a collateral disability as a result of the judgment and preserves the justiciability of an appeal even if the offender has voluntarily satisfied the judgment." May nullify State v. Berndt (1987), 29 Ohio St. 3d 3.

State v. Evans, 113 Ohio St. 3d 100, 2007-Ohio-861 -- Paragraph two of the syllabus: "App. R. 12(A)(1)(c) requires an appellate court to decide each assignment of error and give written reasons for its decision unless the assignment of error is made moot by a ruling on another assignment of error." The Eighth District was considered to have too readily deemed moot a retaliatory sentencing assignment of error after granting relief on another sentencing claim.

In re L.W., 168 Ohio App. 3d 613, 2006-Ohio-644 -- The child who was the subject of neglect and dependency hearing died during the objections process. The action is moot. The subject matter of the action, custody, was abated. The capable of repetition evading review exception does not apply since the repetition aspect is too speculative. Nor does the debatable constitutional question exception apply.

Culver v. City of Warren (1948), 84 Ohio App. 373, 393 -- "Actions or opinions are described as "moot" when they are or have become fictitious, colorable, hypothetical, academic or dead. The distinguishing characteristic of such issues is that they involve no actual genuine, live controversy, the decision of which can definitely affect existing legal relations. * * * "A moot case is one which seeks to get a judgment on a pretended controversy, when in reality there is none, or a decision in advance about a right before it has been actually asserted and contested, or a judgment upon which some matter which, when rendered, for any reason cannot have any practical legal effect upon a then-existing controversy." (Citations omitted.) Also see Grove City v. Clark, Franklin App. No. 01AP-1369, 2002-Ohio-4549; James A. Keller, Inc. v. Flaherty (1991), 74 Ohio App. 3d 788, 791.

State v. Goff, 154 Ohio App. 3d 59, 2003-Ohio-4524, ¶ 14-17 -- Error in obtaining statements in violation of Miranda is mooted by the state not using those statements at trial.

State v. Adams, Cuyahoga App. No. 84180, 2004-Ohio-6630 -- An appeal from a felony conviction is not moot despite the defendant having served the entire prison sentence. Attendant civil disabilities and postrelease control are continuing consequences of the conviction.

State v. Clark, Portage App. No. 2001-P-0099, 2002-Ohio-4816 -- Trooper was convicted of making an unsafe turn. Though she had paid the fine, the case was not moot as within her employment she was subject to a progressive disciplinary system and conviction could affect her chances for promotion.

State v. James-Neville, Belmont App. No. 03 BE 68, 2004-Ohio-6840 -- While felony appeals are generally not mooted by the completion of the sentence, there is an exception when only the correctness of the length of the sentence is at issue. Exception is made here with respect to a low level felony as the issue raised is capable of repetition yet evading review. Also see State v. Campbell, 166 Ohio App. 3d 363, 2006-Ohio-2294.

Smith v. Leis, 106 Ohio St. 3d 309, 2005-Ohio-5125 -- According to fn. 1 at p. 312, the capable of repetition yet evading review mootness exception is limited to there being a reasonable expectation that the same complaining party will be subject to the same action again. But even though this defendant is doing so much time that he is unlikely ever again to face posting cash-only bail, the court addresses the legality of such bail. The great public interest in the constitutional question overrides mootness.

Cleveland v. Mathis (1999), 136 Ohio App. 3d 41, 43 -- Ongoing probation is a sufficient disability to overcome any mootness challenge.

State v. Golston (1994), 71 Ohio St. 3d 224 -- Syllabus: "A person convicted of a felony has a substantial stake in the judgment of conviction which survives the satisfaction of the judgment imposed upon him or her. Therefore, an appeal challenging a felony conviction is not moot even if the entire sentence has been satisfied before the matter is heard on appeal. (State v. Wilson [1975], 41 Ohio St. 2d 236...and State v. Berndt

[1987], 29 Ohio St. 3d 3...distinguished; State v. Williams (1992), 80 Ohio App. 3d 542...disapproved." Holding applies even if the defendant has previously been convicted of a felony.

State v. McGettrick (1987), 31 Ohio St. 3d 138 -- Death of the defendant while an appeal is pending moots both the appeal and the underlying conviction unless either the defendant's representative or the state moves that a personal representative of the decedent be made a party. Footnote indicates fine is abated in any event, though not costs. Also see State v. Blake (1977), 53 Ohio App. 2d 101.

State v. Harris (1996), 109 Ohio App. 3d 873 -- A case does not become moot when a defendant has involuntarily completed his sentence. Trial court refused to stay sentence and defendant could not post appeal bond. Also see Cincinnati v. Baarlaer (1996), 115 Ohio App. 3d 521, 523-524.

In re Contempt of Morris (1996), 110 Ohio App. 3d 475 -- Appeal was not moot as contemnor was not given option of delaying payment of fine.

State v. Carter (1997), 124 Ohio App. 3d 423, 424 -- Where issue is one capable of repetition, yet evading review an appeal may decided in the interest of justice, even though moot and the defendant does not want conviction and sentence disturbed.

In re Carter (1997), 123 Ohio App. 3d 532, 542 -- Reversal leading to a new trial moots an assignment of error challenging the weight of the evidence, but not one challenging sufficiency.

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Appeals by the prosecution

State ex rel. Steffen v. Court of Appeals, First Appellate District, 126 Ohio St. 3d 405, 2010-Ohio-2430 – Writ of prohibition issued to halt state’s appeal of trial court’s award of a new sentencing phase trial in a 1982 capital case. Steffen had been convicted of rape and a capital specification based on rape or attempted rape. Recent DNA testing disclosed semen was deposited by a morgue employee, not the defendant. State agreed conviction for rape should be reduced to attempted rape, but pursued a claimed appeal as of right from the award of new sentencing trial. Since the state agreed to the reduction, its appeal did not lie from dismissal or partial dismissal. Therefore leave to appeal was required. Since it was not sought, writ of prohibition issues.

State ex rel. Mason v. Burnside, 117 Ohio St. 3d 1, 2007-Ohio-6754 – Prosecutor sought a writ of prohibition after judge ordered police reports and witness statements turned over to the defense in a capital case. Same materials had already been provide the defense expert, but were beyond the scope of Crim.R. 16 discovery. Writ denied. Prosecutor had two adequate remedies at law: (1) leave to appeal pursuant to R.C. 2945.67, (2) appeal in the event there is a contempt finding for noncompliance.

State v. Bales, 195 Ohio App. 3d 538, 2011-Ohio-5336, 960 N.E.2d 1053 (9th Dist) – Defendant entered a guilty plea and was admitted to a diversion program. Prosecutor appealed as a matter of right, contending this was contrary to law because failure to honor the state’s objection diminished the discretion given prosecutors. Dismissed as the prosecutor failed to properly invoke the appellate court’s jurisdiction. Admission to the program did not constitute a sentence. Prosecutor was required to seek leave to appeal.

State v. Jones, 183 Ohio App. 3d 189, 2009-Ohio-2381 – Defense filed a motion for discovery and a motion to compel discovery. The trial was set over one day when a state‘s witness failed to appear. Discovery was finally provided as trial was about to get underway. The court granted a defense motion in limine as to one witness and documents critical to the state‘s case and the state appealed. Interlocutory appeal was in order as the state‘s case was severely compromised so as to destroy the possibility of successful prosecution.

State v. Tate, 179 Ohio App. 3d 135, 2008-Ohio-5820 – State appealed trial court ruling on a motion to suppress statements and lost. Subsequently the state sought to have the trial court vacate its suppression order and lost. In the majority‘s view the refusal to vacate may not be appealed. Dissent believed a Rule 60(B) motion, via Crim. R. 57 was appropriate and might be appealable by leave of court, but would deny leave to appeal in the circumstances of this case.

State v. Pawelski, 178 Ohio App. 3d 426, 2008-Ohio-5180 – Defendant was found not guilty of CCW at a bench trial because the court erroneously interpreted R.C. 4749.10 to allow security guards to carry concealed weapons. State could not appeal as a matter of right, but properly brought the issue up for review by first obtaining leave to appeal, "any other decision, except the final verdict." State wins on the legal issue but judgment is affirmed.

State v. Sparks, 178 Ohio App. 3d 272, 2008-Ohio-4664 – Defendant serving an aggregate sentence of twelve years for F-3‘s was granted judicial release, though he did not qualify as an "eligible offender." Applying State v. Cunningham, 113 Ohio St. 3d 272, 2007-Ohio-1245 the court holds the state may not appeal as a matter of right a modification sentence for an F-3, 4 or 5 that is contrary to law. Dissent concludes the modified sentence was "invalid" because "the trial court lacked statutory and inherent authority to make the modification." Concurring judge draws the distinction that though unauthorized; the matter was within the court‘s subject matter jurisdiction.

State v. Cargile, 121 Ohio St. 3d 1208, 2009-Ohio-477 – Supreme Court Rule of Practice XIV(2)(A)(3) requires that in felony cases the prosecutor serve a copy of the notice of appeal or certified conflict order on the Ohio Public Defender. State P.D.‘s motion to dismiss is denied, but county prosecutor must now make required service and the Public Defender may file an amicus brief. Also see State v. Lester, 121 Ohio St. 3d 1209, 2009-Ohio-478; State v. Rohrbaugh, 121 Ohio St. 3d 1210, 2009-Ohio-479.

State v. Owens, 123 Ohio State 3d 1204, 2009-Ohio-4086 – On motion of the Ohio Public Defender the state‘s notice of appeal is stricken for failure to serve a copy of the notice of appeal on the Ohio Public Defender as required by Supreme Court Practice Rule XIV(2)(A)(3). Below the defendant was represented by counsel and successfully had his sentence vacated because of delay in bringing him to court for sentencing. State v. Owens, 181 Ohio App. 3d 725, 2009-Ohio-1508.

State v. Lomax, 96 Ohio St. 3d 318, 2002-Ohio-4453 -- Death penalty case was tried to a three judge panel which found the defendant not guilty of a prior calculation and design count, but guilty of a felony murder count and a 2929.04(A)(7) specification. The specification failed to allege the defendant was the principal offender in the commission of the predicate felony. Since the panel had found the defendant not guilty of the prior calculation and design count, appellant was not convicted of a death-eligible offense. Held that the prosecutor was not entitled to appeal the denial of a post-verdict motion to amend the indictment either as a matter of right or by leave of court. Doing so amounted to a collateral attack on the verdict. The trial court's ruling was not a dismissal of all or part of the indictment. Instead it was a ruling based on the language contained in the indictment.

State v. Edmondson (2001), 92 Ohio St. 3d 393, 395-396 -- A state may seek leave to appeal substantive law issues in a criminal case which ends in acquittal, but it may not appeal the judgment itself. A court of appeals is not required to grant leave to appeal in such circumstances. If the state wins, the judgment is affirmed. If the decision is in conflict with other appellate districts, the case may be certified to the Supreme Court. Also see State v. Burroughs, 165 Ohio App. 3d 172, 2005-Ohio-6411.

State v. Cunningham, 113 Ohio St. 3d 108, 2007-Ohio-1245 -- The state may not appeal the modification of a sentence granting judicial release for a third, fourth or fifth degree felony. The court also heads off an attempt to appeal the modification as contrary to law by finding the court did not abuse its discretion by permitting the defendant to reinstate an initial timely motion for judicial release though a second motion was untimely.

State v. Lather, Ottawa App. No. OT-03-041, 2004-Ohio-6312 -- For the state to be able to proceed after an interlocutory appeal, "newly discovered evidence" must be just that. Newly available is not enough. An appeal was taken when a witness took the Fifth and the state was not allowed to play her previous statements. The prosecutor made the certification required by Crim. R. 12(K). By the time the state lost the appeal, the witness had been convicted and possibly could be called as a witness. But "newly available" is not synonymous with "newly discovered."

State v. Raitz, Lucas App. No. L-03-118, 2003-Ohio-5687 -- The state may not appeal as a matter of right the grant of occupational driving privileges to a person under suspension for aggravated vehicular homicide. Leave to appeal is required. But since the prosecutor had not been served with the judgment of the trial court in accordance with Civil Rule 58(B), the time for seeking leave to appeal has not yet begun to run.

In re Lee (2001), 145 Ohio App. 3d 167 -- The prosecution may not appeal the finding that a juvenile is not delinquent.

State v. Rogers (1996), 110 Ohio App. 3d 106 -- The prosecution may not appeal a not guilty verdict as being against the weight of the evidence. Also see State v. Huxtable (1983), 13 Ohio App. 3d 371.

State v. Bistricky (1990), 51 Ohio St. 3d 157 -- Syllabus: "A court of appeals has discretionary authority pursuant to R.C. 2945.67(A) to review substantive law rulings made in a criminal case which result in a judgment of acquittal so long as the judgment itself is not appealed." Also see State v. Keeton (1985), 18 Ohio St. 3d 379; State v. Arnett (1986), 22 Ohio St. 2d 186; State v. Curry (1991), 76 Ohio App. 3d 175.

State v. Ulrich (1983), 17 Ohio App. 3d 179 and 182 -- Even if state wins on the merits, acquittal stands. Also see State v. Bistricky (1990), 51 Ohio St. 3d 157, 158.

State v. Dotson (1986), 31 Ohio App. 3d 199 -- Even following conviction, state may seek leave to appeal rulings on evidentiary matters which might have a bearing on potential retrial. But see State v. Dotson (1987), 31 Ohio App. 3d 200; State v. Birely (1986), 31 Ohio App. 3d 234.

State, ex rel. Zoller, v. Talbert (1980), 62 Ohio St. 2d 329 -- Appeal and not mandamus is prosecutor's remedy when judge refuses to impose mandatory days of incarceration upon conviction of OMVI. Also see State, ex rel. Cleveland, v. Calandra (1980), 62 Ohio St. 2d 121; State, ex rel. Leis v. Outcalt (1980), 62 Ohio St. 2d 331.

State v. Ward (1993), 85 Ohio App. 3d 537 -- Upon the defendant's inability at the time of sentencing for a traffic offense to demonstrate financial responsibility, the court imposed the required 90 day suspension, but granted occupational driving privileges, which the state appealed. Held that the state did not have the right to appeal as a matter of right and was required to seek leave to appeal.

State v. Estrada (1998), 126 Ohio App. 3d 553 -- Firing a weapon into a habitation or school indictment dismissed where premises involved was a convenience store. (1) Trial court's failure to make findings was harmless error as it did not prejudice the state's appeal. (2) State's failure to provide transcript or statement of evidence leads to presumption trial court's ruling was valid.

State v. Weaver (1997), 119 Ohio App. 3d 494 -- State filed motion for leave to appeal in the trial court, not the court of appeals. The motion was not supported by the memorandum and attachments required by App. R. 5(A), and none of these deficiencies was ever remedied. Appeal dismissed following oral argument, notwithstanding court previously having granted leave to appeal.

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Criminal Rule 12(K) interlocutory appeals

Criminal Rule 12(K) -- State's Right of Appeal Upon Granting of Motion to Return Property or Motion to Suppress Evidence

 

State v. Jackson, 192 Ohio App. 3d 617, 2011-Ohio-986 – State was granted leave to appeal what it claimed was an order that names of grand jury witnesses be released. Actual order turned out to be for review of list by the trial judge in camera. Exercising its discretion, court concludes leave to appeal was improvidently granted.

 

State v. Basham (2002), 94 Ohio St. 3d 269 -- Syllabus: "A motion for clarification of a final order does not affect the time requirements for filing a notice of appeal." State failed to file an appeal from a suppression order within the specified seven days. Subterfuge of filing a motion for clarification later on fails. See dissent for the practical difficulties faced when a trial court's order is unclear.

State v. Thompson, Franklin App. No. 03AP-841, 2004-Ohio-3229 -- The state's substantive right to pursue an interlocutory appeal is limited to the four categories listed in R.C. 2945.67(A) and is not expanded by Criminal Rule 12(K). Rulings on routine evidentiary matters during trial must be appealed by leave of court.

State v. Buckingham (1980), 62 Ohio St. 2d 14 -- To appeal as of right the ruling on a pretrial motion to suppress evidence, pursuant to Criminal Rule 12(J), prosecutor must certify (1) that the appeal is not taken for purpose of delay, and (2) the granting of the motion has rendered the state's proof so weak in its entirety that any reasonable possibility of effective prosecution has been destroyed. Also see State v. Waller (1976), 47 Ohio St. 2d 52, 57; State v. Collins (1970), 24 Ohio St. 2d 107, 107-110.

State v. Malinovsky (1991), 60 Ohio St. 3d 20 -- Prosecutor may pursue appeal of an evidentiary ruling during trial, pursuant to Crim. R. 12(J), upon certification prosecution cannot go forward without the excluded evidence. This does not infringe upon the defendant's right to an uninterrupted trial and where the court improperly orders the trial to proceed, resulting in a dismissal for failure to prosecute, double jeopardy does not bar retrial.

State v. Bertram (1997), 80 Ohio St. 3d 281 -- Syllabus: "(1) The state's appeal of a motion to suppress, made pursuant to Crim. R. 12(J), is an appeal as of right. (2) An appellate court is without authority to review a prosecutor's Crim. R. 12(J) certification that the granting of a motion to suppress has rendered the state's proof with respect to the pending charge so weak in its entirety that any reasonable possibility of effective prosecution has been destroyed."

State v. Hollis (1994), 98 Ohio App. 3d 549, 552-553 -- Defendant was charged with promoting prostitution and cocaine possession. Trial court granted motion to suppress which adversely affected the cocaine charge but not the prostitution charge. Applying State v. Hayes (1986), 25 Ohio St. 3d 173, held that state could pursue an interlocutory appeal.

State v. Adamson (1998), 83 Ohio St. 3d 248 -- The seven day time limit of Crim. R. 12(J) applies to interlocutory appeals, not appeals from final judgments where the time limit remains 30 days.

State v. Burnette (1998), 125 Ohio App. 3d 278, 282-283 -- State's Crim. R. 12(J) appeal must be initiated within seven days of order. In this case the rule was strictly enforced with regard to an earlier ruling, which by itself probably did not destroy the state's case, but contributed to that result when combined with a later ruling which was timely appealed.

State v. Fraternal Order of Eagles Aerie 0337 Buckeye (1991), 58 Ohio St. 3d 166 -- Syllabus: "Where a motion to suppress is made and granted after the commencement of trial, a trial court shall not proceed to enter a judgment of acquittal so as to defeat the state's right of appeal pursuant to Crim. R. 12(J)."

State v. Burkhart (1984), 14 Ohio App. 3d 446 -- State may appeal ruling suppressing test results in an OMVI case.

State v. Fewerwerker (1985), 24 Ohio App. 3d 27 -- State may appeal ruling on a motion in limine if it is the equivalent of a motion to suppress.

In re Hester (1982), 3 Ohio App. 3d 458 -- State may still proceed to trial after losing interlocutory appeal of suppression issue if previous claim that reasonable possibility of effective prosecution had been destroyed by ruling was made in good faith.

State v. Caltrider (1975), 43 Ohio St. 2d 157 -- Generally state may not pursue a second interlocutory appeal. Here claim was that trial court had broadened its initial suppression order.

State v. Wilkinson (1996), 115 Ohio App. 3d 411 -- Whether or not the defendant's statement would have been suppressible based on illegality of search, Crim. R. 12(J) does not allow state to now attempt to prove case based on the statement, having already appealed the ruling on the suppression motion.

State v. Comstock (1992), 79 Ohio App. 3d 416 -- Prosecutor took an unsuccessful appeal under Crim. R. 12(J) certification adverse ruling on pretrial motion destroyed possibility of effective prosecution. While speedy trial time is usually tolled during such appeals, defendant claimed it should not be here as prosecutor testified he intended to proceed regardless of outcome of appeal. Court found time was tolled. Though prosecutor may have feared acquittal, probable cause was all that was required to go forward.

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Juvenile cases

In re A.J.S., 120 Ohio St. 3d 185, 2008-Ohio-5307 – (1) Syllabus: "The order of a juvenile court denying a motion for mandatory bindover bars the state from prosecuting a juvenile as an adult for a criminal offense. It is therefore the functional equivalent of a dismissal of a criminal indictment and constitutes a final order from which the state may appeal as a matter of right." Court notes that jeopardy would attach as soon as the juvenile court started hearing evidence to determine guilt. (2) The court of appeals split on the standard of review. After citing Ornelas v. United States (1996), 517 U.S. 690, 699 and State v. Fanning (1982), 1 Ohio St. 3d 19, ¶51: "Following these lines of analysis, a juvenile court‘s probable-cause determination in a mandatory-bindover proceeding involves questions of both fact and law, and thus we defer to the trial court‘s determinations regarding witness credibility, but we review de novo the legal conclusion whether the state presented sufficient evidence to demonstrate probable cause to believe that the juvenile committed the acts charged."

In re J.C., 186 Ohio App. 3d 243, 2010-Ohio-637 – Although an appellate court is not obligated to consider an issue not explicitly raised by the parties, it may consider an issue implicit in an issue properly raised in the appeal. Agency moved for permanent custody after children had only been back in their custody or two months. District precedent calls for twelve months at the time the motion is filed, not encompassing time from earlier cases

In re M.P., 124 Ohio St. 3d 445, 2010-Ohio-599 – Syllabus: “An order of a juvenile court for discretionary juvenile bindover in a delinquency proceeding because the court finds that the child is amenable to care or rehabilitation within the juvenile system is not a final order from which the state may appeal as a matter of right.” Court of appeals denied a motion for leave to appeal.

In re H.F., 120 Ohio St. 3d 499, 2008-Ohio-6810 – Syllabus: "An appeal of an adjudication order of abuse, dependency, or neglect and the award of temporary custody pursuant to R.C. 2151.353(A)(2) must be filed within 30 days of the judgment entry pursuant to App. R. 4(A)." Parent sought to raise an assignment of error pertaining to the initial proceedings which resulted in an award of temporary custody in an appeal from the order granting permanent custody. Reverses In re H.F., 176 Ohio App. 3d 106, 2008-Ohio-1627.

In re A.W., 195 Ohio App. 3d 379, 2011-Ohio-4490, ¶8 -- In determining whether an adjudication of a child as abused, neglected or dependent is against the manifest weight of the evidence, the reviewing court examines the entire record, weighs the evidence and all reasonable inferences, considers the credibility of the witnesses, and determines whether in resolving conflicts in the evidence the trier of fact clearly lost its way, and created such a manifest miscarriage of justice that the adjudication must be reversed. Citing In re M.H., 9th Dist. No. 09CA0028, 2009-Ohio-6911, ¶14, quoting State v. Thompkins (1997), 78 Ohio St. 3d 380, 387.

In re Weaver, 179 Ohio App. 3d 792, 2008-Ohio-6189 – Court had before it rival custody motions for legal custody. Temporary custody was granted father. Grandmother appealed. Appeal dismissed. Citing In re Adams, 115 Ohio St. 3d 86, 2007-Ohio-4840 the court finds temporary custody awards do not fully determine the action.

In re N.I., 191 Ohio App. 3d 97, 2010-Ohio-5791 – After a 13-year old was found guilty of rape the court found substantial grounds existed to mitigate the juvenile’s conduct and dismissed the complaint pursuant to Juv. R. 29(F)(2)(d). State was granted leave to appeal. While the state may generally appeal dismissals, the dismissal here was the court’s final verdict, which may not be appealed according to R.C. 2945.67(A).

In re K.S., 192 Ohio App. 3d 472, 2011-Ohio-755 – Juvenile was found delinquent based on attempted rape, and classified as a Tier II sex offender by the juvenile court. State appealed. Appeal dismissed for failure to seek leave to appeal. Absent a timely motion, the Court of Appeals does not have jurisdiction.

In re S.J., 106 Ohio St. 3d 11, 2005-Ohio-3215 -- Juvenile court did not find probable cause in support of bindover. Prosecutor appealed. Juvenile admitted delinquency. Syllabus: "(1) A juvenile court lacks jurisdiction to proceed with an adjudication of a child after a notice of appeal has been filed from an order of that court. (2) During the pendency of an appeal, any adjudication of a child made by a juvenile court is void. Therefore the Double Jeopardy Clause of the United States Constitution does not apply, and the court of appeals may review the merits of the appeal."

In re Stanley, 165 Ohio App. 3d 726, 2006-Ohio-1279 -- Juvenile court rejected bindover motions because the offenses charged did not qualify for mandatory bindover. The court erred by not considering discretionary bindover. But in one case the state dismissed charges before filing a notice of appeal, meaning there was no final appealable order.

In re A.C., 160 Ohio App. 3d 457, 2005-Ohio-1742 -- In a neglect/dependency/abuse case a notice of appeal is timely either within thirty days of the adjudicatory ruling or within thirty days of the final dispositional order. If the notice of appeal is filed after final disposition, matters pertaining to adjudication may, in the court's discretion, be raised even if the judgment entry from that phase of proceedings is not attached to the notice of appeal. On the ultimate issue of Rule 29 noncompliance, a motion to withdraw the admission was not required to preserve the issue for appeal.

In re Anderson (2001), 92 Ohio St. 3d 63 -- Syllabus: "A juvenile court proceeding is a civil proceeding." Thus delayed appeals pursuant to App. R. 5(A) are not available. However, the saving provision of App. R. 4(A) applies, extending the time for filing the notice of appeal when service of the judgment entry is not made upon the parties within three days as required by Civ. R. 58. Compare In re Cross, 96 Ohio St. 3d 328,332, 2002-Ohio-4183 ¶21: While juvenile court proceedings may generally be categorized as civil, there are criminal aspects that require adherence to the requirements of due process; State v. Walls, 96 Ohio St. 3d 437, 2002-Ohio-5059 ¶ 25. Note that App. R. 5(A) has been amended to permit delayed appeals in delinquency and serious youthful offender proceedings.

In re Amos, 154 Ohio App. 3d 434, 2003-Ohio-5014 -- The failure to make a record of proceedings as required by Juv. R. 37(A) is an abuse of discretion requiring reversal where it has been impossible to prepare a transcript for appellate review.

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Appeal bond

R.C. 2953.09 -- Suspension of sentence in criminal cases; bail

Appellate Rule 8 -- Bail and Suspension of Execution of Sentence in Criminal Cases

Criminal Rule 46 -- Bail

 

State v. Plunkett, 186 Ohio App. 3d 408, 2009-Ohio-5307 – Defendant received three concurrent sentences on drug charges and was released on appeal bond after serving the first 48 days. When the court of appeals affirmed his conviction that stay automatically ended, but neither the appellate court nor the trial court took any steps to have the defendant remanded to custody. After he began serving a sentence on new charges counsel filed a motion asking that execution of the prior sentences resume. The court erroneously ordered that this happen only after time had been served on the new charges. Once a defendant has commenced serving a sentence, it may not be modified or amended except as authorized by the General Assembly, and courts have not been granted such authority.

 

Smith v. Leis, 165 Ohio App. 3d 581, 2006-Ohio-450 -- After the court of appeals reversed the defendant's conviction based on an incorrect ruling on a motion to suppress evidence the trial court set a "$500,000, no 10%" bond pending the state's effort to take the case to the Supreme Court. Court concludes defendant was entitled to release on recognizance. Opinion provides a primmer on excessive bail habeas actions. Sheriff's appeal dismissed as moot since the defendant had been released and no charges were pending. Smith v. Leis, 111 Ohio St. 3d 493, 2006-Ohio-6113. Related case: State v. Smith, 163 Ohio App. 3d 567, 2005-Ohio-5204.

 

Coleman v. McGettrick (1965), 2 Ohio St. 2d 177 -- The constitutional right to bail does not extend to bail after conviction. Release on bond pending appeal depends on statutory authority (or rules). Also see In re Thorpe (1936), 132 Ohio St. 119; Dapice v. Stickrath (1988), 40 Ohio St. 3d 298; Christopher v. McFaul

(1985), 18 Ohio St. 3d 233.

 

State, ex rel. Silcott, v. Spahr (1990), 50 Ohio St. 3d 110 -- Appellate Rule 8 and Criminal Rule 46 control over R.C. 2949.02 and 2953.09 as to who may be admitted to bond pending appeal.

Liberatore v. McKeen (1980), 63 Ohio St. 2d 175 -- Balancing factors for and against the setting of an appeal bond, trial and appellate courts were found to have abused their discretion in refusing to do so. Compare Jurek v. McFaul (1988), 39 Ohio St. 3d 42.

State v. Aspell (1966), 5 Ohio App. 2d 230 -- If the effect of a reversal by the Court of Appeals is that the defendant is to be discharged, it is incumbent upon the state to seek a stay from the Supreme Court if there is to be a further appeal.

Burch v. Perini (1981), 66 Ohio St. 2d 174 -- Reversal and remand to lower court does not require immediate release pending disposition of case.

State ex rel. Pirman v. Money (1994), 69 Ohio St. 3d 591 -- (1) Habeas corpus and not mandamus is the proper vehicle for challenging excessive bail or refusal to set bail after a judgment of conviction. (2) A no contact provision included by the court of appeals in an appeal bond was not improper.

Brown v. Rogers (1995), 72 Ohio St. 3d 339 -- A habeas petition alleging a refusal to set an appeal bond must have attached copies of the entries or orders of the trial or appellate courts denying bail.

State v. Plotnick (November 7, 1985), Franklin Co. App. No. 85AP-325, unreported (1985 Opinions 3283) -- Once the appeal as of right has been determined, the trial court may not extend an appeal bond beyond the thirty days R.C. 2949.03 allows to file a notice of appeal to the Supreme Court. Various provisions construed to prevent appeal bond during second appeal from ruling on motion for a new trial base upon newly discovered evidence.

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Preservation of the record

Also see Rules of Evidence/Evidence Rule 103 -- Rulings on Evidence

State v. Hatten, 186 Ohio App. 3d 286, 2010-Ohio-499, ¶61 – Documents attached to a motion or memorandum are a part of the record on appeal and need not be added through a motion to supplement.

State v. Dibble, 195 Ohio App. 3d 189, 2011-Ohio-3817 – Affidavit of the municipal court judge who issued the search warrant under challenge was a part of the record by virtue of being attached to a motion. Whether it may be considered by the appellate court is a separate question, which the court of appeals here finessed by concluding it was not relevant.

State v. Conner, 192 Ohio App. 3d 166, 2011-Ohio-146, ¶7-15 – Courtroom equipment for recording the trial was defective, and did not record the testimony of the defendant or his witness. While Criminal Rule 22 requires recording proceedings in all serious offense cases, it remains the duty of an appellant to produce a record demonstrating error. Efforts were made pursuant to App. R. 9, but the defendant still maintained a denial of due process as an assignment of error. “Since appellant stipulated that the supplement to the record was accurate and complete, he may not now argue that the record is insufficient for this court to review or that he was prejudiced by the failure to record the omitted testimony.”

Aurora v. Bellinger, 180 Ohio App. 3d 178, 2008-Ohio-6772 -- OMVI conviction reversed without addressing the assignments of error because the trial judge persistently refused to upgrade courtroom recording equipment and blew off remands for settlement of the record pursuant to App. R. 9(c).

In re Holmes, 104 Ohio St. 3d 664, 2004-Ohio-7109 -- After argument, the court of appeals overruled the assignments of error because various exhibits had been omitted from the record on appeal. Reversed. Transmission of a complete record was the duty of the clerk, and counsel for appellant did not have "the legal duty to stand over the clerk's shoulder to ensure that all the exhibits were filed." The court of appeals should have used App. R. 9(E) to correct an imperfect trial court record.

In re B.E., 102 Ohio St 3d 388, 2004-Ohio-3361 -- Syllabus: "When a juvenile court fails to comply with the recording requirements of Juv.R. 37(A) and an appellant attempts but is unable to submit an App.R. 9(C) statement to correct or supplement the record, the matter must be remanded to the juvenile court for a rehearing." See dissent for an outline of prudent procedure in securing a 9(C) statement.

In re Edgerson (2001), 144 Ohio App. 3d 113 -- Tapes of juvenile court termination of parental rights hearing were unavailable. Appellant mother had missed the hearing. Case was remanded to the trial court with an order to settle the record. Trial court adopted an App. R. 9(C) statement prepared by appellee. Reversed. App. R. 9(C) statements may only be prepared by an appellant. Motion to strike the titular App. R. 9(C) statement should have been sustained. See State v. Mock, 136 Ohio Misc. 2d 21, 2005-Ohio-7142 for the proposition that the common pleas court may proceed to trial even when the bindover record has been lost and cannot be created under App. R. 9(C).

State v. Wood (2001), 141 Ohio App. 3d 634, 637 -- No contest plea was entered after the court ruled against the defense on a claim of privilege. Held to be an evidentiary issue capable of determination without trial of the general issue, and thus appealable.

State v. Whitmore, Hamilton App. No. 2003 CA 5, 2003-Ohio-4088, ¶ 5 -- "A direct appeal is not an appropriate mechanism for determining whether the trial court properly determined that the transcript is complete. Such a determination would require fact finding, which can only be accomplished in an original action for mandamus. While App. R. 9(E) might have some application were an appeal from the judgment of conviction pending in this court, such is not the case..."

State v. Skimmerhorn, 162 Ohio App. 3d 762, 2005-Ohio-4300, ¶7-11 -- Issue on appeal was the admissibility of a an exhibit that was not admitted and was not proffered for the record at trial. It was proffered and accepted by the trial court three months later. The timing of a proffer is of minimal importance and defense counsel did not object. The document was properly before the appellate court.

State v. Davis (1964), 1 Ohio St. 2d 28 -- Trial counsel must state the specific basis of objection to preserve issue for review.

State v. Awan (1986), 22 Ohio St. 3d 120 -- Syllabus: "Failure to raise at the trial court level the issue of the constitutionality of a statute or its application, which issue is apparent at the time of trial, constitutes a waiver of such issue and a deviation from this state's orderly procedure, and therefore need not be heard for the first time on appeal."

State v. Luna (1982), 2 Ohio St. 3d 57 -- Negotiated no contest plea preserves the defendant's right to appeal ruling on pretrial motion.

State v. Engle (1996), 74 Ohio St. 3d 525 -- No contest plea was entered after court overruled Rule 29 motion for acquittal and motions in limine. It was the mistaken understanding of the judge, prosecutor and defense attorney that those rulings could be appealed following a no contest plea. Plea held not to have been entered knowingly or intelligently. Also see State v. Amburgey (1993), 86 Ohio App. 3d 635.

Columbus v. Sullivan (1982), 4 Ohio App. 3d 7 -- No contest plea does not preserve right to appeal court's ruling on pretrial determination whether proposed evidence is material and relevant. Compare Chillicothe v. Knight (1992), 75 Ohio App.3d 544, 548-549 where the object was access to police reports and not merely a ruling as to their ultimate admissibility.

State v. Williams (1977), 51 Ohio St. 2d 112 -- An appellate court need not consider an error which could have been called to the attention of the trial court at a time when it could have been avoided or corrected. Also see State v. Glaros (1960), 170 Ohio St. 471; State v. Awan (1986), 22 Ohio St. 3d 120, 122; State v. Childs (1968), 14 Ohio St. 2d 56; 1981 Dodge Ram Van (1988), 36 Ohio St. 3d 168.

State v. Price (1979), 60 Ohio St. 2d 136 -- Paragraph three of the syllabus: "The Supreme Court will not ordinarily consider a claim of error that was not raised in any way in the Court of Appeals and was not considered or decided by that court. (Toledo v. Reasonover, 5 Ohio St. 2d 22, approved and followed.)

State v. White (1982), 6 Ohio App. 3d 1 -- Ruling on a motion in limine is tentative, presumptive and preliminary and subject matter must generally be addressed again at the appropriate point during the trial. Also see State v. Leslie (1984), 14 Ohio App. 3d 343.

State v. Ulis (1992), 65 Ohio St. 3d 83 -- Motions to suppress are not limited to constitutional issues. Since the criminal rules favor determination of evidentiary matters before trial where possible, the ruling on a motion to keep out testimony of a prosecution witness was improperly construed as a motion in limine, requiring renewed objection when the witness was called at trial. The full blown pretrial hearing was sufficient to preserve the issue for review.

Knapp v. Edwards Laboratories (1980), 61 Ohio St. 2d 197 -- It is the duty of the appellant to furnish the transcript of the proceedings needed for appellate review. While there are alternative means of producing a record, absent a transcript, the ultimate failure to produce a transcript or adequate record means that the reviewing court must presume the validity of proceedings in the lower court. Also see Parma v. Manning (1986), 33 Ohio App. 3d 67; State v. Gray (1993), 85 Ohio App. 3d 165, 167-170.

State v. Ishmail (1978), 54 Ohio St. 2d 402 -- Paragraph one of the syllabus: "A reviewing court cannot add matter to the record before it, which was not a part of the trial court's proceedings, and then decide the appeal on the basis of the new matter." Also see State v. Phillips (1995), 74 Ohio St. 3d 72, 80.

State v. Palmer (1997), 80 Ohio St. 3d 543 -- Syllabus: "The requirement of a complete, full, and unabridged transcript in capital trials does not mean that the trial record must be perfect for purposes of appellate review."

State v. Keenan (1998), 81 Ohio St. 3d 133, 139 -- In a death penalty trial, court denied pretrial motion to record all sidebars. Error held waived because no attempt was made to use App. R. 9 to reconstruct the record and show prejudice.

State v. Williams (1995), 73 Ohio St. 3d 152, 160-162 -- In a death penalty case, the court rejects efforts to broadly supplement the record with materials not before the trial court and not sought to be added when the case was before the court of appeals.

State v. Jones (1994), 71 Ohio St 3d 293 -- (1) A criminal defendant must suffer the consequences of nonproduction of an appellate record where nonproduction is caused by his or her own actions. If not, and a settled record cannot be produced pursuant to App. R. 9, the trial court may grant a new trial. (2) Article IV, Sec. 3(B)(1)(f) of the Ohio Constitution (original jurisdiction in "...any cause on review as may be necessary to its complete determination) does not confer upon the court of appeals authority to grant a motion to a new trial.

State v. Nobles (1995), 106 Ohio App. 3d 246, 268-269 -- Judge refused to have all sidebar conferences put on the record. No reversal as counsel failed to supply gaps in the record through Appellant Rule 9(C) or (E), and context does not suggest reversible error was hidden in the gaps.

In re Hannah (1995), 106 Ohio App. 3d 766 -- It was not a denial of due process or equal protection, or ineffective assistance of counsel, not to record an admission hearing in juvenile court. Juv. R. 37 requires recordation only upon request.

State ex rel. Hill v. Niehaus (1994), 68 Ohio St. 3d 507 -- The trial court may resolve disputes and correct factual issues in a trial record, including disputes over when a verdict form was filed or the effect of a document's being filed late. The injured party's remedy lies in appeal rather than mandamus: "As do all counsel, counsel representing criminal defendants have an obligation not to file separate and multiplictious lawsuits when issues can be resolved in pending litigation."

Tallmadge v. Gang (1994), 97 Ohio App. 3d 56 -- Appellant city failed to submit a motion to supplement the record with a transcript of proceedings. As a result, the appeals court disregards portions of the city's brief referring to the transcript, and the appeal taken by the city fails.

State v. Burrell (1993), 89 Ohio App. 3d 737, 741 -- Though counsel failed to object at the time testimony was received, a subsequent motion to strike preserved the issue for purposes of appeal as trial court would still have had an opportunity to take remedial action.

State v. Gleason (1996), 110 Ohio App. 3d 240, 248 -- Where the verdict form failed to include a finding establishing a higher degree of the offense, defense counsel's failure to object to verdict form or instructions did not waive error. Obligation to make timely objection applies only to matters which prejudice the defendant.

State v. Smith (1993), 87 Ohio App. 3d 480 -- Failure to include a copy of written instructions, which were supposedly given to the jury but were not read aloud at the end of the trial, was a violation of due process in that the defendant was foreclosed from appellate review.

State v. Hammer (1992), 82 Ohio App. 3d 663 -- Failure to have relevant portion of videotape "transcript" transcribed and attached to brief prevents review of issue. App. R. 9(A), applied. Also see State v. Evans (1994), 93 Ohio App. 3d 121. (Codefendant's confession reviewed before sentence was passed.)

In re Collins (1998), 127 Ohio App. 3d 278 -- Failure to record hearing before juvenile court magistrate, as required by Juv. R. 37(A), leads to reversal and remand for a new adjudicatory hearing. Only record of proceedings were fill in the blank forms.

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Procedure

State v. Moore, 185 Ohio App. 3d 772, 2010-Ohio-770, ¶17-19 – Appellate court granted appellant’s motion to add a second case number to the notice of appeal. This was proper as proceedings had been consolidated in the trial court.

Cleveland v. Posner, 188 Ohio App. 3d 421, 2010-Ohio-3091 – (1) At ¶3-7 – While appellate courts may jointly consider two or more assignments of error, an appellant does not have that option. App. R. 16(A)(7) requires a separate argument as to each assignment of error. The court interprets App. R. 12(A)(2) to allow courts to disregard any assignments of error that an appellant fails to separately argue. (2) Lawyer representing himself challenged the speeding camera ordinance both facially and as applied in his case. Facial challenge does not lie in an administrative appeal. As applied challenge does.

State v. Chessman, 161 Ohio App. 3d 140, 2005-Ohio-2511 -- Anders equates a frivolous appeal with one lacking arguable merit. The possibilities that the prosecutor will have a strong response or that the defendant may not ultimately prevail do not mean an issue lacks arguable merit. An issue lacks arguable merit only if on the facts and law involved no reasonable contention can be made that there is a basis for reversal.

State v. Westfall (1976), 46 Ohio St. 2d 31 -- For an inmate not represented by counsel, the deadline for filing a notice of appeal is met by delivery to prison authorities for forwarding to the appropriate court. A (1967), 10 Ohio St. 2d 195.

State v. Herzing (1985), 18 Ohio St. 3d 337 -- Syllabus: "A court of appeals may not dismiss, sua sponte, an appeal based upon a defect in the mode of service of an appellant's brief, when said brief was otherwise timely filed before the appellate court..."

Penson v. Ohio (1988), 488 U.S. 75 -- If appellate counsel believes there are no issues of merit, brief must be filed pointing out anything which might arguably support the appeal and court must make independent assessment of the record before dismissing the appeal. See Anders v. California (1967), 386 U.S. 738.

Smith v. Robbinsclas (2000), 120 S.Ct. 746 -- The procedure spelled out in Anders v. California (1967), 386 U.S. 738 is merely one method of satisfying the requirements of the constitution for indigent criminal appeals. States may adopt alternative. California procedure allows counsel to remain silent as to the merits of the case.

Ziegler v. Wendel Poultry Ziegler v. Wendel Poultry Inc. (1993), 67 Ohio St. 3d 10, 22 -- Court (entirely composed of substitute judges) finds page limitation in a civil case did not amount to a denial of due process.

State v. Gillard (1997), 78 Ohio St. 3d 548 -- The Supreme Court may remand a case to the trial court for a further hearing on specific issues, while retaining jurisdiction. In such circumstances, there is no right of appeal to the intermediate appellate court.

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Procedure in no merit cases

State v. Williams, 183 Ohio App. 3d 757, 2009-Ohio-4389 – Appointed appellate counsel filed a brief stating no meritorious issues could be raised, cited Anders, stated a copy of the brief would be sent to the defendant, and asked the court to allow the defendant an opportunity to raise any points he chose. The letter to the client only indicated the brief had been filed. It did not suggest he could raise issues on his own. Reversed. Counsel must do all of the following in the First District’s view: (1) Counsel must advise the reviewing court that the appeal is frivolous and ask to withdraw. (2) Submit a brief referring to anything in the record that might form the basis for an appeal. (3) Furnish the client with a copy of the brief and afford the client time to raise any issue he chooses. Also see In re Booker (1999), 133 Ohio App. 3d 387, 390; Freels v. Hills (6th Cir, 1988), 843 F.2d 958.

Allen County Bar Association v. Williams (2001), 92 Ohio St. 3d 104 -- Six month suspended suspension for attorney who voluntarily dismissed an appeal without proper consultation with client.

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Standards for review

State v. Lester, 123 Ohio St. 3d 396, 2009-Ohio-4225, ¶31 – A summary remand decision by the Supreme Court does not settle unaddressed issues for future cases.

Goudlock v. Voorhies, 119 Ohio St. 3d 398, 2008-Ohio-4787 -- "A reviewing court will not reverse a correct judgment even if the lower court‘s reasons were erroneous." Followed: McCuller v. Hudson, 121 Ohio St. 3d 168, 2009-Ohio-721.

State v. Boles, 187 Ohio App. 3d 345, 2010-Ohio-278 -- ¶26: “No court – not a trial court, not an appellate court, nor even a supreme court – has the authority, within its discretion, to commit and error of law.” ¶15-25 take exception to the common recitation that “abuse of discretion means more than an error of law or judgment.” Opinion quotes approving. The second edition of Black’s Law Dictionary picked the offending language up from a 1940 Ohio Supreme Court decision, but it has not carried forward into the 4th and 8th editions.

State v. Gonzalez, 188 Ohio App. 3d 121, 2010-Ohio-982 – Rule 29 motion maintained the prosecution in a sexual imposition case had failed to prove venue. The trial court overruled the motion based on the prosecutor’s assertion the victim testified the incident took place in “Richwood,” apparently a town in Union County. On review of the record, there was no such testimony. Nor was venue otherwise established. Reversed. The prosecutor made the pitch at oral argument that venue could be inferred from the fact the investigation officer’s jurisdiction was within that of the court. ¶8: “Arguments presented for the first time on appeal will not be addressed by the appellate court.” See State v. Awan (1986) 22 Ohio St. 3d 120.

State v. Pilgrim, 184 Ohio App. 3d 675, 2009-Ohio-5357, ¶19-21 – A party may not argue on appeal a basis for suppression not advanced in the trial court. Nor need the appellant court consider grounds advanced in the trial court not briefed in the appeal.

State v. Obasohan, Franklin App. No. 07AP-297, 2008-Ohio-797, ¶23 -- "Error in the admission or exclusion of evidence in a criminal trial must be considered prejudicial unless the court can declare, beyond a reasonable doubt, that the error was harmless, and unless there is no reasonable possibility that the evidence, or the exclusion of evidence, may have contributed to the accused‘s conviction." Citing State v. Bayless (1976), 48 Ohio St.2d 73, 106, vacated in part on other grounds (1978), 438 U.S. 911. Also see State v. Conway, 108 Ohio St. 3d 214, 2006-Ohio-791, ¶78.

State v. Hill, 160 Ohio App. 3d 324, 2005-Ohio-1501, ¶29 -- "New rules of criminal procedure that expand the rights of the accused always have retroactive application to criminal cases pending on direct appeal."

Westfield Insurance Co. v. Galatis, 100 Ohio St. 3d 216, 2003-Ohio-5849 -- Paragraph one of the syllabus: "A prior decision of the Supreme Court may be overruled where (1) the decision was wrongly decided at that time, or changes in circumstances no longer justify continued adherence to the decision, (2) the decision defies practical workability, and (3) abandoning the precedent would not create an undue hardship for those who have relied upon it."

State ex rel. Van Dyke v. Public Employee Retirement Board, 99 Ohio St. 3d 430, 2003-Ohio-4123, -- (1) ¶ 38: The Supreme Court will not reverse a court of appeals judgment based on the appellate court's erroneous rationale. Citing Phillips v. Irwin, 96 Ohio St. 3d 350, 2002-Ohio-4758, ¶ 5, and Johnson v. Timmerman-Cooper (2001), 93 Ohio St. 3d 614, 616. (2) ¶ 41-42: A reviewing court need not address constitutional claims not raised by complaint or amended complaint, and the opposing party did not expressly or impliedly consent to litigation of those claims. Also see State ex rel. Miller v. Reed (1999), 87 Ohio St. 3d 159, 160.

In re Malone, Franklin App. No. 03AP-489, 2003-Ohio-7156, ¶ 38 -- The appellant must present his or her contentions with respect to each assignment of error and the reasons in support of those contentions. It is not the duty of a reviewing court to search the record for evidence to support an appellant's argument as to assigned error.

State ex rel. Carter v. Schotten, 70 Ohio St. 3d 89, 92, 1994-Ohio-37 -- "...(A) reviewing court is not authorized to reverse a correct judgment merely because erroneous reasons were assigned as a basis thereof." Also see State ex rel. Cassels v. Dayton City School District Board of Education (1994), 69 Ohio St. 3d 217, 222; Myers v. Garson (1993), 66 Ohio St. 3d 610, 614; State v. Featherstone, 150 Ohio App. 3d 24, 2002-Ohio-6028.

State v. South, 162 Ohio App. 3d 123, 2005-Ohio-2152, ¶13 -- As to the claimed failure to demonstrate withheld evidence would have proven innocence: "After our initial bewilderment, we question whether the state is facetious in advancing this Alice-in-Wonderland argument. The tautology is too obvious: the defendant has not justified his right to a copy of the videotape upon which he might experiment in search of exculpatory evidence because he has not already proven that the experiment would produce exculpatory evidence. The argument proves nothing but that the defendant has conducted no experiment on a tape he does not have. The repetitive and circular argument is dizzying."

North Olmstead v. North Olmstead Land Holdings, Ltd. (2000), 137 Ohio App. 3d 1, 6 -- The constitutionality of a statute should not be addressed where the record presents some other ground upon which the court may base its decision. Also see Department of Commerce v. United States House of Representatives (1999), 119 S.Ct. 765; Ashwander v. Tennessee Valley Authority (1936), 207 U.S. 288. Accordingly, a municipal ordinance under constitutional attack should initially be afforded the presumption of constitutionality, and the court should consider nonconstitutional issues raised by a motion to dismiss.

State v. McKee (2001), 91 Ohio St. 3d 293 -- (1) At p. 294 when conviction rests solely on challenged testimony, plain error analysis is appropriate. (2) At p. 298 -- "When evidence of an element of the crime charged is deemed insufficient on appeal, the conviction must be reversed."

State v. Madrigal (2000), 87 Ohio St. 3d 378, 397 -- Errors which may be harmless considered separately may violate a defendant's right to a fair trial when considered together. Also see State v. Durnwald, 163 Ohio App. 3d 361, 2005-Ohio-4867, ¶57-60 where this is applied even though three errors had not individually been declared harmless.

Ornelas v. United States (1996), 517 U.S. 690 -- The determination of reasonable suspicion or probable cause for purposes of passing on the validity of a warrantless search is a mixed question of fact and law, to be reviewed de novo by an appellate court, without the deference to the findings of the trial court called for when pure questions of fact are involved. Also see Thompson v. Keohane (1995), 516 U.S. 99 -- Issue of custody for Miranda purposes is a subject for independent review by an appellate court; State v. Gillard (1997), 78 Ohio St. 3d 548, 552 -- Existence of a conflict of interest is a mixed question of fact and law.

State v. Sufronko (1995), 105 Ohio App. 3d 504, 506 -- "When interpreting statutes and their application, an appellate court conducts a de novo review, without deference to the trial court's determination."

United States v. Angiulo (1st Cir. 1990), 897 F. 2d 1169, 1196 --A conviction cannot be sustained on a theory the jury was not instructed on. If an erroneous instruction was given (presumably one beneficial to the defendant), it remains the law of the case for purposes of weighing the sufficiency of the evidence.

State v. Hamilton (1991), 77 Ohio App. 3d 293, 300 -- "With all due respect to the various trial judges who sit as the trier of fact in countless cases each year, the fact that a defendant forgoes a jury trial is hardly an excuse to give free reign to admit any and all evidence on the principle that the trial court will separate the wheat from the chaff...By agreeing to have the trial courts sit as the trier of fact, the defendant does not waive his right to have only relevant evidence submitted to the trier of fact."

State v. Brown (1995), 101 Ohio App. 3d 784, 787 -- "...(I)n a trial to the bench it is presumed that the court 'considered only relevant, material, and competent evidence in arriving at its judgment unless it affirmatively appears to the contrary.'" [Citing State v. White (1968), 15 Ohio St. 2d 146, 151.]

State v. Peagler (1996), 76 Ohio St. 3d 496 -- Paragraph one of the syllabus: "While an appellate court may decide an issue on grounds different from those determined by the trial court, the evidentiary basis upon which the court of appeals decides a legal issue must have been adduced before the trial court and have been made a part of the record thereof." Also see State v. Owen (1996), 114 Ohio App. 3d 226.

State v. Lowe (1994), 69 Ohio St. 3d 527 -- Paragraph two of the Syllabus: "The standard of appellate review in midtrial appeals is the same as that in post-trial appeals."

State v. Brown (1992), 65 Ohio St. 3d 483 -- Where evidence seized as the result of an illegal inventory search could not reasonably have contributed to conviction, error in admission is harmless beyond a reasonable doubt. See dissent as to danger of overly broad application of the harmless error rule.

State v. Hirtzinger (1997), 124 Ohio App. 3d 40, 50 -- "When a court admits hearsay beyond the dictates of Evid. R. 802, the standard of review is a strict one. 'In the final analysis, the evidence in favor of conviction, absent the hearsay, must be so overwhelming that the admission of those statements was harmless beyond a reasonable doubt.' State v. Kidder (1987), 32 Ohio St. 3d 279, 284..."

State v. Wernet (1996), 108 Ohio App. 3d 737, 745 -- "There is, however, a synergistic relationship between the degree of the error and the quantum of other evidence against the defendant in applying a harmless error analysis. Relatively minor trial errors are harmless as long as there is overwhelming evidence of guilt from other sources."

State v. Jenkins (1984), 15 Ohio St. 3d 164, 222 -- "'(A)n abuse of discretion involves far more than a difference in *** opinion ***. The term discretion itself involves the idea of choice, of an exercise of the will, of a determination made between competing considerations. In order to have an "abuse" in reaching such determination, the result must be so palpably and grossly violative of fact and logic that it evidences not the exercise of will but perversity of will, not the exercise of judgment but defiance thereof, not the exercise of reason but rather of passion or bias.'" (Citing Spaulding v. Spaulding [1959], 355 Mich. 382, 384-385, 94 N.W. 2d 810, 811-812.)

State v. Echols (1998), 128 Ohio App. 3d 677, 699-700 -- Abuse of discretion is an unfortunate term because the common meaning of abuse implies corrupt practice, deceit or impropriety. It would be better to draw a distinction between those situations where the decision is best made by the jurist weighing conflicting procedural, factual or equitable considerations which vary from case to case, and those situations where the facts or inferences from them are not in dispute and there are few or no conflicting procedural, factual or equitable considerations. Citing State v. Chapple, 660 P.2d at 1224, fn. 18.

Toledo Great E. Shoppers City, Inc. v. Abde's Black Angus Steak House No. 111 (1986), 24 Ohio St. 3d 198, 203 -- An appellate court may rule upon errors neither assigned nor briefed. Also see State v. Gunther (1998), 125 Ohio App. 3d 226, 236.

United States v. Olano (1993), 507 U.S. 725 -- Failure of attorneys to speak up when afforded an opportunity to speak as to an erroneous procedure created a "forfeited error," which under F. R. Crim. P. 52(b) did not require reversal.

Sullivan v. Louisiana (1993), 508 U.S. 275 -- Harmless error analysis may not be applied to structural defects in the constitution of the trial mechanism. Also see Arizona v. Fulminante (1991), 499 U.S. 279; State v. Gunther (1998), 125 Ohio App. 3d 226, 237-238.

Chapman v. California (1967), 386 U.S. 18, 24 -- "...(B)efore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt."

California v. Roy (1996), 519 U.S. 2 -- Opinion delineates distinctions among the strict harmless error standard of Chapman (harmless beyond a reasonable doubt), the less demanding Kotteakos standard applied in federal habeas review (substantial or injurious effect or influence in determining the jury's verdict), and structural errors which defy harmless error analysis.

State v. Garner (1995), 74 Ohio St. 3d 49, 64 -- "...(A) conviction will be reversed where the cumulative effect of errors in a trial deprives a defendant of the constitutional right to a fair trial even though each of numerous instances of trial court error does not individually constitute cause for reversal." Also see State v. DeMarco (1987), 31 Ohio St. 3d 191, paragraph two of the syllabus.

Goldfuss v. Davidson (1997), 79 Ohio St. 3d 116 -- The plain error doctrine is not favored in civil cases, and may be applied only when the legitimacy of the judicial process is placed in doubt.

Sidney v. Walters (1997), 118 Ohio App. 3d 825 -- Defendant claimed prosecutorial misconduct. Prosecutor did not file a brief. Court applies App. R. 18(C), accepting defendant's arguments and reversing. Concurring judge says claims had merit.

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Plain error; Structural error

Puckett v. United States (2009), 129 S.Ct. 1423 – The federal standard for plain error review has four prongs: (1) There must be an error the defendant has not affirmatively waived. (2) The error must be clear or obvious. (3) It must have affected the defendant‘s substantial rights. (4) Remedy is at the discretion of the appellate court if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.

U.S. v. Marcus (2010), 130 S.Ct. 2159 – Defendant was convicted based on a continuing course of conduct extending back before the effective date of the charging statutes. The issue was raised for the first time on appeal. The Second Circuit’s plain error review required reversal if there was any possibility conviction was based on pre-effective date conduct. This rule is at odds with the Supreme Court’s plain error standard as set forth in Puckett v. United States. The error was not structural. The actual claim is a denial of due process as the ex post facto clause serves as a limitation on the legislature.

State v. Cihonski, 178 Ohio App. 3d 713, 2008-Ohio-5191 – ¶19: "… (T)o find structural error, a court must (1) determine that a constitutional error has occurred, (2) conduct analysis under the presumption that the error is not structural, and (3) determine that the constitutional error has permeated the entire trial, rendering it unable to serve as a 'vehicle' for determination of the defendant‘s guilt or innocence." Failure to notify the jury that the defendant had entered a plea of not guilty by reason of insanity and to instruct the jury on that plea constituted structural error. Plea was entered but apparently forgotten. Defendant was found competent to stand trial, but such finding does not preclude a jury finding insanity Failure to bring insanity to the attention of the jury denied appellant his constitutional right to trial by jury. Evidence was such as might provide a basis for finding insanity. Compare State v. Monford, Franklin App. No. 09AP-274, 2010-Ohio-4732, appeal dismissed as improvidently granted, State v. Monford, 131 Ohio St. 3d 40, 2011-Ohio-6398.

United States v. Gonzalez-Lopez (2006), 126 S.Ct. 2557 -- Missouri federal court refused to admit counsel of choice pro hac vice based on a misinterpretation of a court rule. Initially hired counsel and counsel of choice squabbled and ultimately the defendant was represented at trial by a different attorney. Denial of representation by counsel of choice was structural error. Defendant does not have to show new counsel was ineffective. The right to counsel of choice looks to the accused's belief who can best represent him, not the ultimate fairness of the trial. Because the consequences cannot be calculated with any precision, harmless error analysis would be inappropriate.

State v. Payne, 114 Ohio St. 3d 502, 2007-Ohio-4642 -- Failure to object to a sentence as violating Blakely v. Washington forfeits that issue on appeal. Blakely error is not structural error. Opinion distinguishes forfeiture of issues from waiver and void sentences from those that are voidable.

State v. Perry, 101 Ohio St. 3d 118, 2004-Ohio-297 -- If there has been an objection, and if error is demonstrated, the prosecution bears the burden of proving it is harmless. If there has been no objection, the defense must demonstrate both error and that substantial rights were affected. Structural errors defy harmless error analysis because they involve constitutional defects affecting the framework within which trial proceeds. Caution should be used applying structural error analysis when there has been no objection, in order not to encourage and reward inaction.

State v. Hill (2001), 92 Ohio St. 3d 191 -- (1) Syllabus: "When a court of appeals engages in a plain-error analysis, it must conduct a complete review of all relevant assignments of error in order to determine whether a manifest miscarriage of justice has occurred that clearly affected the outcome of the trial." Syllabus pertains to plain error reversal by the court of appeals based on a Doyle v. Ohio (1976), 426 U.S. 610 violation. Cause remanded for the court of appeals to consider assignments of error previously deemed moot. (2) Also reverses State v. Hill (2000), 136 Ohio App. 3d 636 which held that adherence to a local rule imposing the anonymous jury system in all cases requires reversal, since though counsel did not object, the error is structural, and thus not subject to plain error analysis. The Supreme Court finds the error, if any, not to be structural.

State v. Sanders (2001), 93 Ohio St. 3d 245, 278 -- "The presence of a biased judge on the bench is, of course, a paradigmatic example of structural constitutional error, which if shown requires reversal without resort to harmless-error analysis."

State v. Barnes (2002), 94 Ohio St. 3d 21, 25-28 -- Supreme Court holds felonious assault by means of a deadly weapon is not a lesser included offense to attempted murder, but refuses to reverse as plain error: Since it had not decided the issue before, it was not plain and did not have to be corrected.

State v. Gross, 97 Ohio St. 3d 121, 2002-Ohio-5524, ¶ 45 -- For there to be plain error: (1) There must be an error, meaning a deviation from a legal rule; (2) The error must be plain, meaning an obvious defect in the trial proceedings; and (3) The error must have affected the outcome of the trial. (Citing State v. Barnes (2002), 94 Ohio St. 3d 21, 27.)

United States v. Cotton (2002), 122 S.St. 1781 -- Under Federal Criminal Rule 52(B) plain error reversal requires (1) an error, (2) that is plain, (3) affects substantial rights, and (4) the error seriously affects the fairness, integrity or public reputation of judicial proceedings.

In re Etter (1998), 134 Ohio App. 3d 484 -- Though the plain error doctrine is generally not favored in civil cases, it may be applied in cases involving error which seriously affect the basic fairness, integrity of the judicial process. Error leading to reversal had not been the subject of objections in juvenile proceedings before a magistrate. Also see State v. Murray, Montgomery App. No. 2002-CA-10, 2002-Ohio-4809.

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Application for reconsideration

State v. Latham, Lucas App. No. L-03-1188, 2005-Ohio-321 -- App. R. 26(A) motion for reconsideration granted. An Anders brief was filed, but the case presents a Blakely claim. Issue at this stage is whether the proposed assignment of error is frivolous, not the merits.

Matthews v. Matthews (1981), 5 Ohio App. 3d 140, 143 -- "The test generally applied [in App. R. 26(A) motions] is whether the motion for reconsideration calls to the attention of the court an obvious error in its decision or raises an issue for our consideration that was either not considered at all or was not fully considered by us when it should have been."

State v. Owens (1996), 112 Ohio App. 3d 334 -- Court responds to an apparently obtuse and insulting motion for reconsideration by using uncharacteristically dense language, chiding counsel for repeating arguments already made, then quoting a Polish proverb (without providing a translation) to the effect that if you stay on the trail in the Carpathian Mountains, you won't fall off.

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Delayed appeals

State v. Hartikainen (2000), 137 Ohio App. 3d 421 -- Trial court granted a motion to suppress. Clerk did not notify prosecutor judgment entry had been filed until after the expiration of the seven days allowed to initiate an appeal as of right. (1) Delayed appeals are only available to defendants in criminal cases. (2) The state, not being a legal person has no standing to assert due process or equal protection. (3) There is no rule or statute requiring service of judgment entries on prosecutors.

State v. Cromlish (September 1, 1994), Franklin Co. App. Nos. 94APA06-855, 856, 857, unreported (1994 Opinions 3972, 3974) -- "While the newly amended App. R. 5(A) has relieved any party seeking leave to file a delayed appeal from submitting a brief or memorandum to show the probability that claimed errors did in fact occur, the rule does not relieve the moving party from demonstrating a reasonable explanation of the basis for failure to perfect a timely appeal."

State v. Sims (1971), 27 Ohio St. 2d 79 -- Syllabus: "In the absence of evidence in the record upon which it could be determined that an indigent convicted defendant knowingly and intelligently waived his right to court-appointed counsel for direct appeal prior to the expiration of the time in which such an appeal could be taken, a Court of Appeals must make such a factual determination before it dismisses a motion for leave to appeal."

State v. Gentry (1983), 10 Ohio App. 3d 227 -- When an indigent inmate seeks delayed appeal and appointment of counsel and represents that lack of money and attorney were reasons for not perfecting a direct appeal, court should appoint counsel even if defendant has not fully complied with App. R. 5(A).

State v. Boone (1996), 114 Ohio App. 3d 275 -- Court overruled motion for leave to file a delayed appeal filed pro se fourteen months after guilty plea. Res judicata said to bar second attempt to obtain a delayed appeal. Murnahan doesn't apply since was acting pro se.

State v. Gover (1995), 71 Ohio App. 3d 577 -- Attorney appointed to handle an appeal was never notified by the trial court. Ten months later the defendant unsuccessfully sought a delayed appeal. Following this, the state P.D. entered the case and sought delayed reconsideration pursuant to App. R. 26. (1) App. R. 26 is not available in these circumstances. (2) Postconviction is the proper remedy and relief almost certainly should be granted. The trial court should reenter its judgment, thus permitting an appeal as of right to be filed. (3) The court of appeals denial of leave to pursue a delayed appeal was "doubtful at best."

State v. Robinson (1995), 101 Ohio App. 3d 238 -- Court notes that under the amended version of App. R. 5(A) it may always be required to grant leave to appeal when a defendant has pleaded guilty and thus been left without counsel for purposes of pursuing an appeal. Also see State v. Borchers (1995), 101 Ohio App. 3d 157 noting that the unique practice of trial courts within the Second Appellate District of advising defendants who have pleaded guilty of their right to appeal has generated a significant number of appeals, though reversible error is seldom found.

State v. Nichols (1984), 11 Ohio St. 3d 40 -- Post conviction actions are civil in nature. A delayed appeal is not available as Appellate Rule 5(A) applies only to criminal cases. Also see State v. Harvey (1980), 68 Ohio App. 2d 170. But see State v. Mapson (1982), 1 Ohio St. 3d 217 which holds there is not a final appealable order until the trial court has filed findings of fact and conclusions of law.

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Application for reopening

State v. Davis, 119 Ohio St. 3d 422, 2008-Ohio-4608 – Syllabus: "The filing of a motion seeking a discretionary appeal in this court does not create a bar to a merit ruling on a timely filed application to reopen an appeal claiming ineffective assistance of counsel under App. R. 26(B)." Defendant hired new counsel after the direct appeal was decided. Claim of ineffective assistance of counsel was advanced in both a 26(B) motion and in the memorandum in support of jurisdiction. Supreme Court declined jurisdiction. Court of Appeals subsequently took this as res judicata on the claim, though the Supreme Court had not addressed the merits.

Morgan v. Eads, 104 Ohio St. 3d 142, 2004-Ohio-6110 -- Syllabus: "Proceedings under App. R. 26(B) are collateral postconviction proceedings and not part of the direct appeal process." The question was certified from federal court. The ultimate issue is not stated, but is probably the deadline for filing federal habeas.

State v. McFadden (December 2, 2003), Franklin App. No. 01AP-1476 -- Issues decided upon delayed reopening are to be decided on their merits, then the need for reversal further determined through Strickland analysis. Reconsideration granted but outcome remains the same.

State v. Carter (2001), 93 Ohio St. 3d 581 -- Consideration of new claims in a second application for reopening barred by res judicata. Previous counsel's failure to appeal denial of first application to the Supreme Court was not ineffective assistance of counsel.

State v. Williams, 99 Ohio St. 3d 179, 2003-Ohio-3079, ¶ 10 -- Neither App. R. 26(B) nor State v. Murnahan (1996), 63 Ohio St. 3d 60 provide the right to file second or successive applications for reopening. Also see State v. Twyford, 106 Ohio St. 3d 176, 2005-Ohio-4380.

State v. Hoffner, 112 Ohio St. 3d 467, 2007-Ohio-376 -- A layman's unfamiliarity with the law or the inability to secure new counsel does not excuse filing under App. R. 26(B) within the prescribed 90 days.

State v. Hutchins, Cuyahoga App. Nos. 81578, 81579, 83421, 83564, 2005-Ohio-6094 -- The time for filing an App. R. 26(B) application runs from the final affirmation of sentence. The first appeal affirmed conviction but remanded for resentencing. The second appeal affirmed the sentence. If time began to run from first decision, res judicata would preclude raising ineffective assistance with respect to the appeal of the sentence.

State v. Rozanski, Sandusky App. No. S-020007, 2003-Ohio-3454, ¶8 -- When appointed appellate counsel fails to file a brief on appellant's behalf, a genuine issue of fact exists as to whether appellant was denied effective assistance of appellate counsel.

State v. Rowland (2000), 138 Ohio App. 3d 473 -- Appeal reopened pursuant to App. R. 26(B) where original appellate counsel did not raise sentencing issues. Reversed for failure to set forth findings in support of maximum sentence.

State v. Young, Cuyahoga App. No. 79113, 2003-Ohio-2607 -- App. R. 26(B) is limited to "the appeal from the judgment of conviction and sentence" and does not extend to appeals concerning super-shock probation.

State v. Murnahan (1992), 63 Ohio St. 3d 60 -- Syllabus: "Claims of ineffective assistance of appellate counsel are not cognizable in post-conviction proceedings pursuant to R.C. 2953.21. (2) Claims of ineffective assistance of appellate counsel may be raised in an application for reconsideration in the court of appeals or in a direct appeal to the Supreme Court pursuant to Section 2(B)(2)(a)(iii), Article IV of the Ohio Constitution. (In re Petition of Brown [1990], 49 Ohio St. 3d 222, 223...Manning v. Alexander [1990], 50 Ohio St. 3d 127...followed.) (3) Where the time period for reconsideration in the court of appeals and direct appeal to the Supreme Court has expired, a delayed claim of ineffective assistance of appellate counsel must first be brought in an application for delayed reconsideration in the court of appeals where the alleged error took place, pursuant to App. R. 26 and 14(B), and if delayed reconsideration is denied then the defendant may file for delayed appeal in the Supreme Court, pursuant to Section 8, Rule II of the Rules of Practice of the Supreme Court." For procedure now adopted by court rule, see App. R. 26(B) - Application for Reopening.

State v. Reed (1996), 74 Ohio App. 3d 534 -- (1) At p. 535: "We hold that the two-prong analysis found in Strickland is the appropriate level of review to determine whether an appellant has raised a 'genuine issue' in an application for reopening an appeal under App. R. 26(B)(5)." (2) Failure of appellate counsel to raise Faretta right to self representation issue meets both prongs of the Strickland test.

State v. Williams (1996), 74 Ohio St. 3d 454, 455 -- Issues of ineffective assistance of appellate counsel must be raised at the first opportunity to do so. If appeal to Supreme Court is handled by new counsel, must be raised in that appeal.

State v. Wickline (1996), 74 Ohio St. 3d 369 -- App. R. 26(B) application for reopening was denied for not being filed within 90 days of the effective date of the rule, which was several years after the conviction was initially affirmed. Due process, ex post facto and equal protection attacks of strict enforcement of 90-day rule are rejected.

State v. Sweeney (1999), 131 Ohio App. 3d 765 -- Court declines to accept lack of a complete transcript and limited access to prison law library as adequate justification for delay of more that 90 days in filing motion for reopening.

State v. Chapman (1996), 112 Ohio App. 3d 607 -- Appellate counsel was ineffective in failing to assign as error the improper imposition of an indefinite sentence.

State v. Wilson (1997), 80 Ohio St. 3d 132. 134 -- "That counsel was 'busy' with other cases does not constitute good cause for the delayed (App. R. 26[B]) filing."

State v. Sizemore (1998), 126 Ohio App. 3d 143 -- Lack of counsel, or misplaced reliance on counsel does not excuse failure to file an application in a timely manner. Nor does misplaced reliance on a fellow inmate who is not an attorney.

State v. McNeil (1998), 83 Ohio St. 3d 457 -- Court of appeals denied application, rejecting counsel's claim that the record was unavailable because it had been forwarded to the Supreme Court which was hearing the appeal as of right from affirmance of the death penalty. Counsel should have sought cooperation from other attorneys involved in the case who had copies of the record, or from the clerk of the Supreme Court.

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Mandate; Res judicata; Law of the case doctrine

State v. Segines, 191 Ohio App. 3d 60, 2010-Ohio-5112 – Court allowed a 26(B) reopening premised on State v. Colon. Defendant would have obtained relief, as did a codefendant, but the law of the case doctrine doesn’t apply when there has been an intervening decision by a court of superior jurisdiction. Here there were two – Horner, reversing Colon, and State v. Fry concerning consequences of multiple predicate offenses.

State v. Love, 194 Ohio App. 3d 16, 2011-Ohio-2224 – On appeal defendant maintained felonious assault and attempted murder merged and that aggravated robbery and kidnapping merged. The court of appeals rejected both claims. The Supreme Court summarily reversed but only as to felonious assault and attempted murder. At resentencing the law of the case doctrine meant that the aggravated robbery and kidnapping counts still did not merge.

State v. Chapman, 190 Ohio App. 3d 528, 2010-Ohio-5924 – Juvenile was bound over for trial as an adult. Convictions from first trial were reversed, but he was convicted again. Law of the case doctrine precludes litigating claims concerning the bindover or the failure to advice the mother she had the right to an attorney before advising her son how to proceed with the police interrogation.

State v. Martin, 192 Ohio App. 3d 661, 2011-Ohio-951 – Court granted community control notwithstanding presumption in favor of incarceration. In the first appeal the court of appeals reversed based on the failure to provide necessary findings and reasoning, but did not reach the merits of a second assignment of error challenging the wisdom of the trial court’s decision. In a second appeal, the court found the consideration of the revived second assignment of error claims was barred by res judicata. This is corrected in response to the state’s motion for reconsideration, but the state’s claims are rejected. Motion for en banc reconsideration denied.

State v. Fisher, 181 Ohio App. 3d 758, 2009-Ohio-1491 – A resentencing hearing following the failure to include postrelease control does not permit the defendant to relitigate unsuccessful claims in his previous appeal as of right from the initial conviction. The law of the case doctrine applies.

State v. Akemon, 173 Ohio App. 3d 709, 2007-Ohio-6217 – Trial court erred by overruling postconviction motion to withdraw guilty plea without allowing the seven days provided by local rule for the defendant to respond to the state‘s memorandum contra. This was harmless as to Rule 11 claims which had also been raised in a prior appeal – the law of the case doctrine applies. But this conclusion cannot be reached as to other claims, requiring remand, though not necessarily a hearing on the motion‘s merits.

State v. Davis, 166 Ohio App. 3d 468, 2006-Ohio-1592 -- Defendant after pleading no contest claimed ineffective assistance of counsel, in part based on pursuit of a suppression motion. That assignment of error was overruled, but the case was remanded for a hearing on a motion to withdraw the no contest plea. The plea was vacated, the motion reargued and again overruled, and another no contest plea was entered. Res judicata does not bar appeal of the ruling on the motion as the reversal made the initial ruling interlocutory, subject to reconsideration. Applying the law of the case doctrine, sufficiency of the affidavit may be challenged as that issue was not the focus of the first appeal.

State v. Gray, 161 Ohio App. 3d 614, 2005-Ohio-3009 -- A trial court may not expand upon or vary the terms of an appellate court's mandate, and must apply the law as determined by the appellate court. Case was remanded for a 16(B)(1)(g) review. Instead the court granted a new trial without first conducting that review. Court also apologizes for some aspects of its prior decision.

State ex rel. Sharif v. McDonnell (2001), 91 Ohio St. 3d 46 -- When the court of appeals directs the trial judge in a postconviction case to make findings of fact and conclusions of law supporting the summary dismissal of the case as untimely filed, such order becomes the law of the case. The trial court must make such findings whether or not there is a general obligation to make findings in such circumstances.

State v. Childs (2001), 141 Ohio App. 3d 767 -- On reversal and remand from the Supreme Court defendant was not entitled to a further evidentiary hearing on the suppression motion at issue. Also see State v. Lilly (2000), 139 Ohio App. 3d 560 -- The trial court was without authority to impose a lesser sentence following reversal and remand on an issue not related to sentencing. State v. Lentz, Lucas App. No. L-01-1461, 2003-Ohio-1038 -- Prior ruling on motion to quash a subpoena for defense counsel's fee agreement and billing records held res judicata.

State ex rel. Davis v. Cleary (1992), 77 Ohio App. 3d 494 -- Intervening decisions of superior courts give rise to an exception to the law of the case doctrine, permitting lower courts to disregard the mandate of a superior court when a case has been remanded. In such circumstances appeal and not mandamus is the remedy.

State v. Wallace (1997), 121 Ohio App. 3d 494 -- The law of the case doctrine is not a limitation on the court's power, but merely a rule of practice. Accordingly, the court refuses to apply an established exception to the doctrine as applied when there has been an intervening decision by a higher court, but no effort was made in the case under consideration to seek review by the higher court. For the exception see Jones v. Harmon (1930), 122 Ohio St. 420; Gohman v. St. Bernard (1924), 111 Ohio St. 726.

State v. Brooks (1997), 118 Ohio App. 3d 444 -- Following reversal by the Supreme Court, prosecutor managed to have the record "corrected" in a manner which would dictate a different outcome. The Supreme Court denied reconsideration. On remand the prosecutor sought to have the death penalty reimposed by the trial court, which instead followed the mandate of the Supreme Court. No exception found to the law of the case doctrine as the prosecutor had not met his duty to correct the record in a timely manner.

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Proceedings on remand

State v. Gonzales, 151 Ohio App. 3d 160, 2002-Ohio-4937, ¶60-63 -- On remand the trial court must proceed from the point at which the error occurred.

State ex rel. Douglas v. Burlew, 106 Ohio St. 3d 180, 2005-Ohio-4382 -- After the state prevailed on a motion to suppress, the defendant pled guilty to one count of OMVI and the other was dismissed. When the court of appeals reversed, the defendant contended the dropped count could not be revived and sought a writ of prohibition. Writ was properly denied. Following reversal the trial court must proceed from the point at which the error occurred. Here the erroneous ruling preceded dismissal. The court did not patently and unambiguously lack jurisdiction to set aside the dismissal. Appeal is the remedy if revival was in fact erroneous.

In re Walker, 162 Ohio App. 3d 303, 2005-Ohio-3773 -- In termination of parental rights proceedings there had been a previous reversal based on inadmissible hearsay within a psychologist's report and testimony. On remand, the trial court reopened the hearing and allowed the agency to remedy this situation, including offering the testimony of another psychologist. Reversed. On remand, a case returns to the docket of the trial court in the same condition that obtained before the action that resulted in appeal and reversal. Here that was the hearing on the motion for permanent custody. A full new hearing should have been conducted. Furthermore, it was error to allow the agency to present an additional witness but deny the parent and grandparent that opportunity. Issue on remand is the present situation, after five years have passed. Also suggested that a new magistrate be assigned.

In re York (2001), 142 Ohio App. 3d 524 -- Under the "direct remand rule" an appellate court reversing because the evidence is insufficient may remand to the trial court for conviction to be entered on a lesser included offense.

Burks v. United States (1977), 437 U.S. 1 -- Double jeopardy does not bar retrial based on trial error. It does bar retrial when reversal is because the evidence was insufficient. Also see United States v. Scott (1978), 437 U.S. 82, 87-92.

Tibbs v. Florida (1982), 457 U.S. 31 -- Double jeopardy bars retrial when a case is reversed because the evidence is insufficient, but not when reversal is because conviction is against the manifest weight of the evidence. Also see State v. Thompkins (1997), 78 Ohio St. 3d 380, 386-389.

State v. McGee (1999), 128 Ohio St. 3d 541 -- Supreme Court reversed and remanded an endangering children case holding recklessness was the culpable mental state. (1) No error in amendment of the indictment to allege recklessness. (2) Case had originally been tried to the bench, and the judge was of the view that following reversal trial would reopen with the defendant permitted to cross-examine state's prior witnesses and call additional witnesses. Reversed. Case should proceed towards a new trial as from arraignment. Prior jury waiver is nullified.

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