State v. Bradley

2018 Ohio 631

• Court: Ohio Court of Appeals
• Decided: February 20, 2018
• Docket: 2017-T-0011
• Status: Published

Opinion

[Cite as State v. Bradley, 2018-Ohio-631.] IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

TRUMBULL COUNTY, OHIO

STATE OF OHIO, : OPINION

Plaintiff-Appellee, : CASE NO. 2017-T-0011 - vs - :

COREY LAMAR BRADLEY, :

Defendant-Appellant. :

Criminal Appeal from the Trumbull County Court of Common Pleas, Case No. 2015 CR 00886.

Judgment: Appeal dismissed.

Dennis Watkins, Trumbull County Prosecutor, and Ashleigh Musick, Assistant Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH 44481 (For Plaintiff-Appellee).

Michael A. Partlow, 112 South Water Street, Suite C, Kent, OH 44240 (For Defendant- Appellant).

THOMAS R. WRIGHT, P.J.

{¶1} Appellant Corey Lamar Bradley appealed his conviction for harassment

with a bodily substance in violation of R.C. 2921.38(B), a fifth-degree felony. While this

appeal was pending, Bradley died. Appellant’s counsel filed a suggestion of death.

Neither party intends to substitute a representative.

{¶2} The Supreme Court of Ohio has addressed the fate of a direct appeal from

a criminal conviction when the appellant dies while the appeal is pending. State v.

McGettrick, 31 Ohio St.3d 138, 509 N.E.3d 378 (1987). Upon construing App.R. 29, McGettrick found that either party to the appeal may move to substitute a representative

as the party appellant, and the court shall proceed to address the merits. Id. at 141-

142.

{¶3} After a reasonable time and absent a motion to substitute, however, “the

court of appeals may dismiss the appeal as moot, vacate the original judgment of

conviction and dismiss all related criminal proceedings, including the original

indictment.” Id.

{¶4} “[I]n using the term ‘may’ rather than ‘shall,’ the McGettrick court's holding

is stated in a manner which would appear to give an appellate court discretion in

rendering the appeal moot, vacating the judgment, and dismissing the indictment.

However, it is * * * our impression that an appellate court ‘must’ proceed to dismiss the

appeal, vacate the conviction, and dismiss the indictment when an appropriate party is

not substituted by one with the power to request substitution under App.R. 29(A). This is

because, as noted by the McGettrick court, pursuant to App.R. 29(A), substitution is not

automatic; affirmative action is required before substitution may be afforded.” (Citations

omitted.) State v. Fisher, 11th Dist. Trumbull No. 93-T-4938, 1994 WL 320925, *1

(June 30, 1994); State v. McGilvary, 7th Dist. Mahoning No. 15MA15, 2015-Ohio-4825,

¶11; State v. Liddy, 11th Dist. Lake No. 2010-L-135, 2011-Ohio-5866, ¶9.

{¶5} Here, neither party moved to substitute a personal representative in

Bradley’s place. Accordingly, we dismiss the appeal as moot, vacate the original

judgment of conviction, and dismiss all related criminal proceedings, including the

original indictment.

TIMOTHY P. CANNON, J.,

COLLEEN MARY O’TOOLE, J.,

concur. 2