[Cite as State v. Dixon, 2025-Ohio-326.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT LOGAN COUNTY
STATE OF OHIO, CASE NO. 8-24-05 PLAINTIFF-APPELLANT,
v.
ERIC DIXON, OPINION
DEFENDANT-APPELLEE.
Appeal from Logan County Common Pleas Court Trial Court No. CR 21 10 0280
Judgment Affirmed
Date of Decision: February 3, 2025
APPEARANCES:
Erin G. Rosen for Appellant Case No. 8-24-05
WILLAMOWSKI, J.
{¶1} The State of Ohio appeals the judgment of the Logan County Court of
Common Pleas, arguing that the trial court erred by dismissing the indictment
against defendant-appellee Eric Dixon (“Dixon”). For the reasons set forth below,
the judgment of the trial court is affirmed.
Facts and Procedural History
{¶2} On November 9, 2021, Dixon was indicted on two counts of passing
bad checks in violation of R.C. 2913.11(B), first-degree misdemeanors. The State
alleged that Dixon had issued two bad checks to Ohio Ready Mix Concrete
(“ORMC”). Subsequently, the State and Dixon reached an agreement to resolve
this case. Under this agreement, the State offered to dismiss the charges if Dixon
paid restitution in the amount of roughly $2,040.00 to ORMC.1
{¶3} Defense counsel received an email from the State that directed him to
mail a check to their victim advocate at the prosecutor’s office. On June 27, 2023,
defense counsel followed the instructions from the email and mailed a cashier’s
check from Dixon that was in the amount of $2,040.00. However, this cashier’s
check was intercepted by a third party; the payee’s name was altered from “Ohio
Ready Mix” to “Alidoumbia”; and the check was negotiated.
1 In the judgment entry of dismissal, the trial court stated that the amount Dixon was to pay to ORMC in restitution was $2,005.18. However, Dixon made out a check to ORMC in the amount of $2,040.00.
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{¶4} After discussing this situation at a status conference on January 5, 2024,
the trial court noted that, “[t]here’s been no, in th[is] discussion, indication to the
Court that Mr. Dixon was in any way involved” with the interception or negotiation
of the cashier’s check. (Jan. 5 Tr. 4). The trial court then stated the theft of these
funds was “criminal behavior on the part of another person that has intervened and
super[s]eded Mr. Dixon’s * * * getting restitution to the victim.” (Id. at 4). The
trial court then indicated that a dismissal of the charges appeared to be the proper
course of action but scheduled another hearing to address this matter further.
{¶5} At a hearing on January 31, 2024, defense counsel indicated that the
bank was not going to refund the money that was taken by the third party. The State
argued that the charges against Dixon should not be dismissed because “the
agreement had not been completed in that [ORMC] ha[d] not yet been made whole
* * *.” (Jan. 31 Tr. 7). Defense counsel argued that “the defendant accepted the
plea offer and provided valuable consideration, which consummated the deal * * *.”
(Id. at 10).
{¶6} On February 1, 2024, the trial court issued a judgment entry that
dismissed the charges against Dixon. This entry began by noting that the record
contained no evidence that Dixon “had anything to do with the interception, altering,
and negotiation of the check.” (Doc. 45). The trial court then reasoned that
agreements between the State and a defendant are generally subject to the principles
of contract law. Pursuant to the mailbox rule, the trial court found that Dixon
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accepted the State’s offer by mailing the cashier’s check as instructed to
prosecutor’s office. After finding that Dixon had performed under the contract, the
trial court concluded that the State was bound by its agreement with Dixon.
{¶7} The State of Ohio filed its notice of appeal on February 6, 2024. On
appeal, the appellant raises the following two assignments of error:
First Assignment of Error
Whether the trial court erred in dismissing, sua sponte, a criminal indictment alleging fraud by Passing Bad Checks, based upon misapplication of the ‘mailbox rule.’
Second Assignment of Error
Whether the trial court abused its discretion in dismissing the indictment under presumed authority of Crim.R. 48(B).
{¶8} The State of Ohio argues that the trial court did not properly apply the
mailbox rule in determining that the State was bound by the agreement to dismiss
the charges in this case.
Legal Standard
{¶9} The State can enter into an agreement with a defendant for the
“resolution of criminal proceedings.” State v. Sibley, 2011-Ohio-4861, ¶ 19 (6th
Dist.). Such an agreement “is a contract between the prosecution and a criminal
defendant * * *.” State v. Grier, 2011-Ohio-902, ¶ 18 (3d Dist.). For this reason,
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the “principles of contract law are generally applicable to the interpretation and
enforcement of plea agreements.” State v. Bush, 2023-Ohio-4473, ¶ 54 (3d Dist.).
A contract consists of an offer, an acceptance, and consideration. * * * Under Ohio law, consideration consists of either a benefit to the promisor or a detriment to the promisee. To constitute consideration, the benefit or detriment must be ‘bargained for.’ Something is bargained for if it is sought by the promisor in exchange for his promise and is given by the promisee in exchange for that promise.
State v. Moore, 2024-Ohio-1354, ¶ 17 (9th Dist.), quoting Carlisle v. T & R
Excavating, Inc., 123 Ohio App.3d 277, 283 (9th Dist. 1997). “Since a plea
agreement is a contract, to be construed strictly against the state, the prosecutor is
required to fulfill any promise or agreement of the state.”2 State v. Santiago, 2023-
Ohio-561, ¶ 15 (3d Dist.), quoting State v. Zamora, 2007-Ohio-6973, ¶ 12 (3d Dist.).
Standard of Review
{¶10} The existence or interpretation of a contract present questions of law
that appellate courts review de novo. GigSmart, Inc. v. AxleHire, Inc., 2023-Ohio-
3807, ¶ 31 (1st Dist.); Chuma v. Patterson, 2023-Ohio-1128, ¶ 37 (4th Dist.). “De
novo review is independent” and does not give “deference to the lower court’s
decision.” State v. Tasciuc, 2024-Ohio-5556, ¶ 17 (3d Dist.), quoting State v.
Hudson, 2013-Ohio-647, ¶ 27 (3d Dist.). However, on appeal, “great deference is
2 We note that this arrangement is somewhat different from the type of agreement that is generally used to resolve a criminal case because the State did not ultimately seek a plea from Dixon in this case. Nonetheless, Dixon and the State entered into this agreement to bring about the resolution of a criminal case. As such, this arrangement will be held to the general legal standards that govern the typical plea agreement. See State v. Lacy, 1984 WL 4049, *2 (2d Dist. Oct. 5, 1984).
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given to the trial court’s factual findings supporting its legal conclusions.” Chuma
at ¶ 37. As the finder of fact, the trial court has “the duty * * * to determine whether
there has been compliance with a plea agreement.” State v. Emch, 2023-Ohio-3553,
¶ 22 (5th Dist.), citing State v. Curry, 49 Ohio App.2d 180, 183 (9th Dist. 1976).
See also State v. Namack, 2002-Ohio-5187, ¶ 26 (7th Dist.).
Legal Analysis
{¶11} Both parties agree that the State offered to dismiss the charges against
Dixon if he paid restitution in the amount of roughly $2,040.00. Pursuant to the
directions in an email from the prosecutor’s office, defense counsel mailed a
cashier’s check on June 27, 2023. Under Ohio law,
an acceptance transmitted in a form invited by the offer is operative as soon as it is put out of the offeree’s possession, regardless of whether it ever reaches the offeror. The ‘mailbox rule’ states that in the absence of any limitation to the contrary in the offer, an acceptance is effective when mailed because the offeror has the power to condition the acceptance of the offer on actual receipt.
Gold Key Lease, Inc. v. Hood, 2001 WL 1137315, *3 (7th Dist. Sept. 20, 2001).
This rule is rooted in the reality that “one of the parties must bear the risk of loss.”
Casto v. State Farm Mut. Auto. Ins. Co., 72 Ohio App.3d 410, 414 (10th Dist. 1991).
{¶12} In its brief, the State concedes that, under the mailbox rule, an
enforceable agreement was formed when defense counsel dispatched the cashier’s
check in accordance with the instructions from the prosecutor’s office. On appeal,
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the State argues that the applicability of the mailbox rule only means that Dixon
accepted the offer and does not mean that he fully performed under the agreement.
{¶13} However, the trial court found that Dixon fully performed his
contractual obligations. At the hearing on dismissal, defense counsel read the
following email that he received from the prosecutor’s office:
what we typically do in these scenarios is have the defendant send the restitution check to our office made out to the victim, Ohio Ready Mix, then we send them [ORMC] a letter and a check. * * * Please mail to the attention of * * * our victim advocate.
(Jan. 31 Tr. 8). Defense counsel reported that he complied with all of the directions
he was provided in mailing the check.
{¶14} The email read by defense counsel does not set forth any act that Dixon
was required to undertake but failed to perform. After considering the relevant facts,
the trial court found that Dixon “performed exactly as directed by the State * * *.”
(Jan. 31 Tr. 11). The trial judge also found that this was “not a situation where we
simply have an offer and acceptance but performance has not yet been undertaken.
It has been fully undertaken by the defendant.” (Id.). Thus, as finder of fact, the
trial court determined that Dixon fully performed his contractual obligations.
{¶15} Additionally, the trial court found that Dixon had relied on the
agreement. At the hearing on the dismissal, defense counsel indicated that Dixon
had obtained a cashier’s check for $2,040.00 pursuant to the agreement. The trial
court found that the issuance of this check meant that Dixon “not only ha[d] an
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expectation interest” in the agreement “but also ha[d] a reliance interest * * *.” (Jan.
31 Tr. 11). In other words, once the $2,040.00 cashier’s check was issued, Dixon
detrimentally changed his position in reliance on his agreement with the State.
{¶16} In summary, the trial court ultimately concluded that Dixon fully
performed his contractual obligations and relied to his detriment on this agreement.
Based on these findings, we do not conclude that the trial court erred in determining
that the State was bound by its agreement with Dixon. Accordingly, the first
assignment of error is overruled.
{¶17} The State of Ohio argues that the trial court abused its discretion under
Crim.R. 48(B) by sua sponte dismissing the charges in this case.
{¶18} Crim.R. 48(B) reads as follows: “If the court over objection of the state
dismisses an indictment, information, or complaint, it shall state on the record its
findings of fact and reasons for the dismissal.” In interpreting this provision, the
Ohio Supreme Court has held the following:
Crim.R. 48(B) recognizes by implication that trial judges may sua sponte dismiss a criminal action over the objection of the prosecution, since the rule sets forth the trial court’s procedure for doing so. The rule does not limit the reasons for which a trial judge might dismiss a case, and we are convinced that a judge may dismiss a case pursuant to Crim.R. 48(B) if a dismissal serves the interests of justice.
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A court has the ‘inherent power to regulate the practice before it and protect the integrity of its proceedings.’ * * * Trial courts deserve the discretion to be able to craft a solution that works in a given case.
State v. Busch, 76 Ohio St.3d 613, 615-616 (1996), quoting Royal Indemn. Co. v.
J.C. Penney Co. (1986), 27 Ohio St.3d 31, 33-34. Thus, appellate courts “review a
trial court’s dismissal of a criminal charge under Crim.R. 48(B) for an abuse of
discretion.” State v. Nevels, 2024-Ohio-4964, ¶ 16 (3d Dist.).
{¶19} The Ohio Supreme Court has also noted that “neither Crim.R. 48(A)
nor Crim.R. 48(B) expressly provides for a dismissal with prejudice * * *.” State
v. Troisi, 2022-Ohio-3582, ¶ 40, quoting State v. Jones, 2009-Ohio-1957, ¶ 13 (2d
Dist.). For this reason, Crim.R. 48(B)
general[ly] * * * does not provide a trial court authority or discretion to dismiss a criminal proceeding with prejudice unless ‘there is a deprivation of a defendant’s constitutional or statutory rights, the violation of which would, in and of itself, bar further prosecution.’
State v. Thompson, 2024-Ohio-1285, ¶ 19 (8th Dist.), quoting Troisi at ¶ 40, quoting
Jones at ¶ 13. If the “[S]tate can reindict that offender and further prosecution would
not be statutorily or constitutionally barred, the action must be dismissed without
prejudice.” State v. Payne, 2023-Ohio-1294, ¶ 7 (8th Dist.).
{¶20} However, “when a plea rests in any significant degree on a promise or
agreement of the prosecutor, so that it can be said to be part of the inducement or
consideration, such promise must be fulfilled.” State v. Lewis, 2002-Ohio-3950, ¶
21 (3d Dist.), quoting Santobello v. New York, 404 U.S. 257, 262 (1971). “In other
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words, a defendant has a due process right to hold the government to the promises
it made that induced him * * *.” U.S. v. Warren, 8 F.4th 444, 448 (6th Cir. 2021).
{¶21} “When an allegation is made that a plea agreement has been broken,
the defendant must merely show that the agreement was not fulfilled.” State v.
Felder, 2018-Ohio-826, ¶ 17 (5th Dist.), quoting State v. Legree, 61 Ohio App.3d
568, 571 (6th Dist. 1988). “[I]t is within the sound discretion of the trial court to
determine whether a party has breached its obligation under a plea agreement.”
State v. Camuso, 1999 WL 1009828, *4 (7th Dist. Oct. 26, 1999).
{¶22} “The state’s failure to abide by the terms of the plea agreement entitles
the defendant to either specific performance or to withdrawal of his or her guilty
plea.” State v. Hartley, 2014-Ohio-4536, ¶ 8 (3d Dist.). As a general matter,
specific performance is an available remedy where “the defendant has shown
detrimental reliance—that a detrimental change in position has occurred in reliance
upon the agreement.” State v. Padilla, 2012-Ohio-5892, ¶ 16 (8th Dist.). “The
appropriate remedy is left to the sound discretion of the trial court.” Id. at ¶ 14.
Thus, appellate courts review “the trial court’s decision on the appropriate remedy
* * * for an abuse of discretion.” Id.
{¶23} Since Crim.R. 48(B) provides for what the trial court must do if the
State objects to the dismissal, the text of this provision “clearly envision[s] the
awareness and participation of the state in the dismissal process.” Huron v.
Slauterbeck, 2015-Ohio-5022, ¶ 8 (6th Dist.). In this process, “the State must be
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afforded an occasion to voice its opposition to a dismissal and preserve its argument
for appeal.” State v. Walker, 2020-Ohio-4949, ¶ 9 (3d Dist.), quoting State v.
Myrick, 2020-Ohio-974, ¶ 7 (3d Dist.).
{¶24} “An abuse of discretion is not merely an error of judgment.” State v.
Sullivan, 2017-Ohio-8937, ¶ 20 (3d Dist.). “Rather, an abuse of discretion is present
where the trial court’s decision was arbitrary, unreasonable, or capricious.” State v.
Howton, 2017-Ohio-4349, ¶ 23 (3d Dist.). “When the abuse of discretion standard
applies, an appellate court is not to substitute its judgment for that of the trial court.”
State v. Richey, 2021-Ohio-1461, ¶ 40 (3d Dist.).
{¶25} At the hearing on January 31, 2024, the trial court found that Dixon
had “completed his end of the bargain” and that “the State [wa]s duty-bound * * *
to dismiss the case.” (Jan. 31 Tr. 17). The prosecutor objected to this conclusion,
arguing “that the agreement had not been completed” and that the State was not
bound by its terms. (Id. at 7). This objection indicated that the State was not, due
to its understanding of this situation, going to perform under this agreement and was
not going move for a dismissal of the charges in the indictment. After recognizing
that the State may want to preserve this issue for appeal, the trial court entered an
order that dismissed the charges against Dixon.
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{¶26} Under the first assignment of error, we noted that the trial court found
that Dixon fully performed his contractual obligations and acted in reliance on this
agreement. In light of these findings, we concluded that the trial court did not err
in determining that the State was bound by its agreement with Dixon. For this
reason, we conclude that, on finding that the State was not going to move for a
dismissal of the charges, the trial court had the discretion to choose an appropriate
remedy for the State’s refusal to perform. Having examined the facts in the record,
we find no indication that the trial court abused its discretion in deciding that
specific performance of the agreement was the appropriate remedy in this case.
{¶27} In turn, specific performance of this agreement would ultimately
require that the charges against Dixon be dismissed. After recognizing the State’s
objection and potential interest in appealing this determination at the January 31,
2024 hearing, the trial court opted to accomplish specific performance by ordering
a dismissal of these charges. On appeal, the State raises three main arguments that
assert the trial court abused its discretion by dismissing these charges.
{¶28} First, the State argues that the trial court did not provide adequate
notice to the parties before the order of dismissal. At the status conference on
January 5, 2023, the parties discussed the State’s agreement with Dixon and the
situation surrounding the negotiated cashier’s check. The trial court then indicated
that, based upon the facts before it, a dismissal of the charges appeared to be the
appropriate course of action.
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{¶29} However, the trial court decided to hold a further hearing on this
matter. On January 10, 2024, a scheduling order was issued that stated a “hearing
on dismissal” was set for January 31, 2024. (Doc. 44). At this hearing, the
prosecutor and defense counsel were given opportunities to present arguments
regarding the agreement between the State and Dixon. The trial court also ensured
that a representative of the victim, ORMC, had an opportunity to address this
situation. These facts indicate that, prior to the order of dismissal, the State received
advance notice of this hearing and an opportunity to present arguments. Thus, we
conclude that this first argument is without merit.
{¶30} Second, the State argues that the trial judge was biased based upon a
conflict of interest. A criminal proceeding “before a biased judge is fundamentally
unfair and denies a defendant due process of law.” State v. LaMar, 2002-Ohio-
2128, ¶ 34. “A party may seek to disqualify a judge who is allegedly prejudiced
and biased by filing an affidavit of disqualification with the Ohio Supreme Court in
accordance with R.C. 2701.03.” King v. Divoky, 2021-Ohio-1712, ¶ 44 (9th Dist.).
{¶31} However, “an affidavit of disqualification is not the sole method
available to raise a claim of judicial bias” as “a biased judge denies a defendant the
due process of law.” State v. Loudermilk, 2017-Ohio-7378, ¶ 18 (1st Dist.), citing
In re Disqualification of Zmuda, 2017-Ohio-317, ¶ 11. Accordingly, appellate
courts “ha[ve] the authority to review a claim of judicial bias as it impacts the
outcome of the case.” Loudermilk at ¶ 18.
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{¶32} In this analysis, “[t]rial judges are presumed to be fair, impartial and
unbiased.” In re A.H., 2019-Ohio-4063, ¶ 65 (8th Dist.). For this reason, “the
appearance of bias or prejudice must be compelling to overcome these
presumptions.” Matter of C.S., 2023-Ohio-3754, ¶ 24 (4th Dist.), quoting In re
Disqualification of George, 2003-Ohio-5489, ¶ 5.
Judicial bias is demonstrated by ‘a hostile feeling or spirit of ill will or undue friendship or favoritism toward one of the litigants or his attorney, with the formation of a fixed anticipatory judgment on the part of the judge, as contradistinguished from an open state of mind which will be governed by the law and the facts.’
Loudermilk at ¶ 21, quoting State ex rel. Pratt v. Weygandt, 164 Ohio St. 463, 469,
(1956), paragraph four of the syllabus.
{¶33} Where a party did not object to the alleged “display[] [of judicial]
bias,” we “review for plain error only.” State v. Rossiter, 2023-Ohio-4809, ¶ 48
(4th Dist.), quoting State v. West, 2022-Ohio-1556, ¶ 28. See also State v. Bond,
2022-Ohio-4150, ¶ 17.
For plain error to apply, the trial court must have deviated from a legal rule, the error must have been an obvious defect in the proceeding, and the error must have affected a substantial right. * * * Under the plain error standard, the appellant must demonstrate that there is a reasonable probability that, but for the trial court’s error, the outcome of the proceeding would have been otherwise.
(Citations omitted.) State v. Bradshaw, 2023-Ohio-1244, ¶ 67 (3d Dist.). Plain
error is recognized “with the utmost caution, under exceptional circumstances and
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only to prevent a manifest miscarriage of justice.” State v. Long, 53 Ohio St.2d 91
(1978), paragraph three of the syllabus.
{¶34} In this case, the trial judge indicated to the parties that he was friends
with a person who was an owner of ORMC. The State raised no objection in
response. Accordingly, we will review this argument for plain error only. As an
initial matter, we note that, in considering a motion for disqualification, the Chief
Justice of the Ohio Supreme Court held that the “mere existence of a friendship
between a judge and an attorney or between a judge and a party will not disqualify
the judge from cases involving that attorney or party.” In re Disqualification of
Burt, 2013-Ohio-5898, ¶ 4, quoting In re Disqualification of Bressler, 81 Ohio St.3d
1215, 1215 (1997).
{¶35} Turning to the record, we note that, when the trial judge disclosed that
he knew an owner of ORMC, the prosecutor indicated that she did not see any issues
with the trial judge continuing with this case. See also In re Disqualification of
Heiser, 2021-Ohio-628, ¶ 12 (“Judges are presumed to be capable of distinguishing
their personal lives from their professional obligations.”), quoting In re
Disqualification of Lynch, 2012-Ohio-6305, ¶ 10. The facts in the record lead us to
the same conclusion that was reached by the prosecutor at the hearing on dismissal.
Having examined the record, we conclude that the State “has failed to cite
compelling evidence that the trial judge was biased or that there was an
unconstitutional ‘potential for bias’ that seriously affected the fairness, integrity, or
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public reputation of the sentencing hearing.” State v. Haudenschild, 2024-Ohio-
407, ¶ 25 (5th Dist.). Thus, this second argument is without merit.
{¶36} Third, the State argues that the trial court’s decision interferes with
ORMC’s right “to full and timely restitution” under Article I, § 10a(A)(7) of the
Ohio Constitution. Also known as “Marsy’s Law,” the provisions contained in this
constitutional amendment “supersede all conflicting state laws.” Ohio Const., Art.
I, § 10a(E). However, the Ohio Supreme Court has concluded that “no portion of
Marsy’s Law ‘conflicts’ with the restitution statutes such that they are
‘supersede[d]’ * * *.” (Bracket sic.) State v. Yerkey, 2022-Ohio-4298, ¶ 12.
{¶37} The restitution statute for misdemeanor offenses is contained
alongside the financial sanctions listed in R.C. 2929.28. As a criminal penalty, this
potential remedy for a victim’s injury is not available until a defendant has been
convicted of an offense. In examining the cases that have interpreted Ohio Const.,
Art. I, § 10a(A)(7), we have not found a situation in which a victim’s right to
restitution was asserted before a conviction was secured by a criminal prosecution.
See City of Centerville v. Knab, 2020-Ohio-5219, ¶ 8-10; State v. Fisk, 2022-Ohio-
4435, ¶ 2, 4; Cleveland v. Rudolph, 2022-Ohio-2363, ¶ 1, 3 (8th Dist.); State v. Scott,
2024-Ohio-2274, ¶ 10, 12 (10th Dist.); State v. Zampini-Solarek, 2024-Ohio-1532,
¶ 2, 9 (11th Dist.); State ex rel. Howery v. Powers, 2020-Ohio-2767, ¶ 1-2 (12th
Dist.).
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{¶38} For a number of reasons, a criminal prosecution can terminate without
a conviction: a trial court can grant a motion to suppress; a defendant’s speedy-trial
time can expire; there can be a failure of proof at trial. In these situations, the State
cannot invoke a victim’s right to restitution as a means to continue a criminal
prosecution that must otherwise fail.
{¶39} In the case presently before us, the State resolved this case through an
agreement with Dixon. Since this agreement required the State to dismiss the case
against Dixon, this prosecution terminated without a conviction. For this reason, no
right exists to a “remedy” that is not available until after a conviction is secured.
State v. Brasher, 2022-Ohio-4703, ¶ 27 (finding that, while the victims had a right
to restitution, this “remedy” was not available where this right was “not invoked at
the defendant’s trial or raised on direct appeal” and that the victims, therefore, had
to “turn to the civil-justice system * * * in order to be made whole”). See also R.C.
2929.28(H). Thus, we conclude that this third argument is without merit.
{¶40} In summary, the trial court dismissed the charges to ensure that Dixon
received what the State had promised in a binding agreement. See Warren, 8 F.4th
444, at 448 (holding that “a defendant has a due process right to hold the government
to the promises it made that induced him”). For this reason, we conclude that the
trial court did not abuse its discretion in so acting. Accordingly, the second
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Conclusion
{¶41} Having found no error prejudicial to the appellant in the particulars
assigned and argued, the judgment of the Logan County Court of Common Pleas is
affirmed.
WALDICK, P.J. and ZIMMERMAN, J., concur.
/hls
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