[Cite as State v. Manns, 2012-Ohio-234.]
COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO
Plaintiff-Appellee
-vs-
FRED L. MANNS, JR.
Defendant-Appellant JUDGES: Hon. W. Scott Gwin, P.J. Hon. Julie A. Edwards, J. Hon. Patricia A. Delaney, J.
Case No. 11-CA-28
OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from Richland County Court of Common Pleas Case No. 2008-CR-145D
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: January 20, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JILL M. COCHRAN FRED L. MANNS, JR. PRO SE Assistant Richland County Prosecutor Inmate No. 553-795 38 South Park Avenue Richland Correctional Institution Mansfield, Ohio 44902 1001 Olivesburg Road Mansfield, Ohio 44901 Gwin, P. J.
{¶1} Defendant-appellant Fred L. Manns, Jr. appeals from the February 18,
2011 order of the Richland County Court of Common Pleas overruling his Motion for
Retrial. Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On May 9, 2008, the Richland County Grand Jury indicted appellant on
one count of receiving stolen property in violation of R.C. 2913.51(A), a felony of the
fourth degree, and two counts of having weapons while under disability in violation of
R.C. 2923.13(A)(3), felonies of the third degree. At his arraignment on June 3, 2008,
appellant pleaded not guilty to the charges.
{¶3} On September 19, 2008 the jury found appellant guilty of the two charges
of having a weapon while under a disability. The jury was unable to reach a verdict as to
the remaining count. Pursuant to a Sentencing Entry filed on September 23, 2008,
appellant was sentenced to an aggregate sentence of ten (10) years in prison. The trial
court also ordered the two guns to be forfeited to the State of Ohio.
{¶4} On September 25, 2008, appellee filed a Motion to Dismiss Count I of the
indictment, the receiving stolen property count, on the basis that the jury was hung on
that count. The state, in its motion, stated that it did not feel the need to proceed on that
count because appellant had been convicted and sentenced on the two other counts.
As memorialized in a Judgment Entry filed on September 29, 2008, Count I was
dismissed without prejudice. {¶5} Appellant filed an appeal as of right from his conviction and sentence. This
court affirmed the judgment of the trial court. See, State v. Manns, Richland App. No. 08
CA 101, 2009-Ohio-3262, 2009 WL 1900432.
{¶6} On January 3, 2011, appellant filed a “Motion for De Novo Retrial” seeking
to be retried on Count I, the receiving stolen property offense. On January 26, 2011,
appellant filed an Amended Motion to Dismiss Count One with Prejudice or Set for
Retrial.
{¶7} The trial court, via a Judgment Entry filed on February 18, 2011, overruled
appellant’s January 3, 2011, motion. In its entry, the trial court stated, in relevant part,
“The defendant now contends he is entitled to a new trial on the receiving stolen
property charge. There is no such charge pending. The defendant cites no authority for
his contention that the State can be compelled to re-indict and try a dismissed felony
charge.”
{¶8} Appellant now raises the following assignments of error on appeal:
{¶9} “I. THE TRIAL COURT ERRED WHEN IT FAILED TO ORDER A NEW
TRIAL OR IN THE ALTERNATIVE DISMISS THE PENDING CHARGE WITH
PREJUDICE AFTER A HUNG JURY, [sic.] AS A RESULT OF THIS ERROR MR.
MANNS JUDGMENT IS NON FINAL.
{¶10} “II. THE FIFTH DISTRICT COURT OF APPEALS LACKED
JURISDICTION WHEN IT AFFIRMED MR. MANNS CONVICTION IN RICHLAND
COUNTY CASE NO. 08-CR-145D, AFTER THE JURY WAS HUNG ON COUNT ONE;
RECEIVING STOLEN PROPERTY THEREBY, RENDERING THE JUDGMENT OF
CONVICTION NON FINAL AND UNAPPEALABLE.” I, II
{¶11} Appellant, in his two assignments of error, argues that there was no final,
appealable order in this case because the trial court did not dismiss the charge of
receiving stolen property with prejudice. Appellant further contends that, therefore, this
Court did not have jurisdiction to review appellant’s appeal in Case No. 08 CA 101.
{¶12} Crim.R. 48 states, in relevant part,
{¶13} “(A) Dismissal by the state
{¶14} “The state may by leave of court and in open court file an entry of
dismissal of an indictment, information, or complaint and the prosecution shall
thereupon terminate.
{¶15} “* * *”
{¶16} R.C. 2941.33 provides that the prosecuting attorney may enter a nolle
prosequi with leave of court on good cause shown and in open court. These provisions
are essentially identical, except that R.C. 2941.33 provides that a nolle prosequi entered
contrary to these provisions is void.
{¶17} The rule does not state the grounds for which a court may dismiss an
indictment, nor does it provide that such dismissal shall be a bar to any further
proceedings. In short, Crim.R. 48(B) does not specifically provide for dismissals with
prejudice. “The purpose of Crim.R. 48 is to maintain a defendant's right to a speedy trial,
but the rule does not alter the pre-rule Ohio practice concerning the court's inherent
power to dismiss. In our judgment, that power includes the right to dismiss with
prejudice only where it is apparent that the defendant has been denied either a constitutional or a statutory right, the violation of which would, in itself, bar prosecution.”
State v. Sutton, 64 Ohio App.2d 105, 108, 411 N.E.2d 818 (9th Dist.).
{¶18} In the case at bar, the state filed a motion to dismiss Count I of the
Indictment on September 25, 2006. This motion was served upon appellant’s counsel.
The trial court dismissed Count I of the Indictment by Judgment Entry filed September
29, 2008. Appellant neither filed an objection in the trial court to the dismissal nor
appealed the trial court’s dismissal entry. Nor did appellant raise an objection or
demand to be re-tried on the receiving stolen property count of the indictment during his
sentencing hearing that took place before the trial court on September 22, 2008.
Pursuant to the Sentencing Entry, filed September 23, 2008, appellant was sentenced
upon the two counts that the jury had returned verdicts of guilty. The trial court
sentenced appellant to an aggregate prison term of ten years. Appellant appealed and
we affirmed his conviction and sentence.
{¶19} “Final judgment in a criminal case means sentence. The sentence is the
judgment. Miller v. Aderhold, 288 U.S. 206, 210, 53 S.Ct. 325, 77 L.Ed. 702; Hill v.
United States ex rel. Wampler, 298 U.S. 460, 464, 56 S.Ct. 760, 762, 80 L.Ed. 1283. In
criminal cases, as well as civil, the judgment is final for the purpose of appeal ‘when it
terminates the litigation between the parties on the merits' and ‘leaves nothing to be
done but to enforce by execution what has been determined.’ St. Louis, Iron Mountain &
S.R.R. Co. v. Southern Express Co., 108 U.S. 24, 28, 2 S.Ct. 6, 8, 27 L.Ed. 638; United
States v. Pile, 130 U.S. 280, 283, 9 S.Ct. 523, 32 L.Ed. 904; Heike v. United States, 217
U.S. 423, 429, 30 S.Ct. 539, 54 L.Ed. 821…” Berman v. United States, 302 U.S. 211, 212-213, 58 S.Ct. 164, 82 L.Ed.2d 204 (1937). In State v. Lester, 2011-Ohio-5204, 2011
WL 4862414 (Ohio) the Ohio Supreme Court held,
{¶20} “A judgment of conviction is a final order subject to appeal under R.C.
2505.02 when it sets forth (1) the fact of the conviction, (2) the sentence, (3) the judge's
signature, and (4) the time stamp indicating the entry upon the journal by the clerk.
(Crim.R.32(C), explained; State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893
N.E.2d 163, modified.)” Id. at paragraph 1 of the syllabus.
{¶21} Because appellant’s September 23, 2008 Sentencing Entry compiled with
Crim. R.32(C), appellant stands convicted of a felony unless the judgment against him
is vacated or reversed. Berman v. United States at 213.
{¶22} A retrial following a hung jury does not violate the Double Jeopardy
Clause. Richardson v. United State (1984), 468 U.S. 317, 324, 104 S.Ct. 3081, 82
L.Ed.2d 248(1984); Accord, State v. Lovejoy, 79 Ohio St.3d 440, 683 N.E.2d 1112,
1997-Ohio-371 at paragraph two of the syllabus. However, in the case at bar, the state
did not seek to retry appellant upon the count of the indictment upon which the jury was
hung; rather as previously noted, the state dismissed Count I of the indictment.
{¶23} To allow the state to simply re-instate the former case or the former
indictment “would allow a prosecutor to keep a defendant perpetually indicted, without
any idea concerning, or control over, when the matter would be resolved.” State v.
Dinkelacker, 156 Ohio App.3d 595, 2004-Ohio-1695, 807 N.E.2d 967, ¶15 (1st Dist.).
{¶24} In Dinkelacker the First District Court of Appeals further noted,
{¶25} “The United States Supreme Court addressed such a concern in Klopfer v.
North Carolina [368 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 211(1967)]. In Klopfer, the state prosecutor, under a ‘nolle prosequi with leave,’ attempted to suspend proceedings on a
criminal indictment indefinitely. The ‘nolle prosequi with leave’ permitted the prosecutor
to activate the charges at any time and to have the case restored for trial ‘without further
order’ of the court. [Id. at 214]. (The obsolete term “nolle” is now a dismissal.) The
charges against the defendant were thus never dismissed or discharged in any real
sense. [Id. at 216].
{¶26} “The Supreme Court reversed and held that the state could not reinstate
the indictment against the defendant. ‘By indefinitely prolonging this oppression, as well
as the ‘anxiety and concern accompanying public accusation,’ the criminal procedure
condoned in this case by the Supreme Court of North Carolina clearly denies the
petitioner the right to a speedy trial which we hold is guaranteed to him by the Sixth
Amendment of the Constitution of the United States.’” [Id. at 222]. State v. Dinkelacker
at ¶16-17.
{¶27} Courts in Ohio have previously determined that an abandonment of a
proceeding, such as a nolle prosequi, constitutes a basis for which to bring a malicious
prosecution claim. Douglas v. Allen (1897), 56 Ohio St. 156, 46 N.E. 707. Relevant to
the case at bar, the Ohio Supreme Court in Douglas noted,
{¶28} “The prosecution being so ended, there can thereafter be no conviction of
the accused in that proceeding, and therefore no opportunity to establish in that
proceeding the existence of probable cause for the prosecution. True, a nolle may be
entered at a time when it will not preclude another prosecution for the same offense, but
the institution of another prosecution requires a new complaint or indictment, and
becomes a new proceeding. The former one, after the discharge of the defendant therefrom, cannot be reinstated or revived and proceeded with; or if it could be, unless
that is done within the proper time, the prosecution would nevertheless be ended.” Id. at
159-160.
{¶29} Thus, the Ohio Supreme Court stated, in dicta, that a prosecution ended
by a nolle prosequi has the same effect as one ended by an acquittal—that “there can
thereafter be no conviction of the accused in that proceeding.” Id. at 159. (Emphasis
added).
{¶30} When a criminal case is dismissed, it is over—except in the case where
the dismissal is appealed. This dismissal was not appealed in appellant’s case.
{¶31} The Constitution of Ohio requires, except in rare cases, that felonies be
prosecuted by indictment. Constitution, Article I, Section 10. “There can be no trial,
conviction, or punishment for a crime without a formal and sufficient accusation. In the
absence thereof the court acquires no jurisdiction whatever, and if it assumes
jurisdiction, a trial and conviction are a nullity.” Stewart v. State (1932), 41 Ohio App.
351, 181 N.E. 111. (Citing Doyle v. State, 17 Ohio 222, 1848 WL 101(Ohio 1848).
{¶32} In the case at bar, any retrial of appellant upon the dismissed charged
would necessitate a new indictment and therefore constitute a new proceeding. Once
the trial court disposed of Count I by judgment entry filed September 29, 2008
appellant's Judgment Entry of Conviction and Sentence filed September 23, 2008
became a final appealable order.
{¶33} Based upon the foregoing, we find that the Judgment Entry of Conviction
and Sentence filed September 23, 2008 was a final appealable order. Thus, this Court properly exercised jurisdiction in hearing and deciding appellant’s appeal as of right.
See, State v. Manns, 5th Dist. No. 08 CA 101, 2009-Ohio-3262, 2009 WL 1900432.
{¶34} Accordingly, appellant’s First and Second Assignments of Error are
overruled.
{¶35} The judgment of the Richland County Court of Common Pleas is affirmed.
By: Gwin, P.J. and
Delaney, J. concur;
Edwards, J., dissents
______________________________ HON. W. SCOTT GWIN
______________________________ HON. JULIE A. EDWARDS
______________________________ HON. PATRICIA A. DELANEY EDWARDS, J., DISSENTING OPINION
{¶36} I respectfully disagree with the majority’s analysis and disposition of
appellant’s two assignments of error. For the following reasons, I would find there is no
final, appealable order in this case and that this Court did not have jurisdiction to hear
the original appeal.
{¶37} Baker, supra., and its progeny deal with what needs to be set forth in
entries dealing with convictions in order to make those entries final, appealable orders.
Pursuant to State ex. Rel. Davis v. Cuyahoga County Court of Common Please, 127
Ohio St.3d 29, 2010-Ohio-4728, 936 N.E.2d 41, dismissed charges do not need to be
mentioned in an entry of conviction to make an entry of conviction a final, appealable
order. While dismissed charges do not need to be mentioned in the entry of conviction,
they must be finally disposed of in an entry of the court. I would find that the entry
initially appealed from in this case was not a final, appealable order because the
dismissed charge was not finally disposed of. It was not finally disposed of in the entry
of conviction or in the separate entry dismissing it without prejudice. Recently, in State
v. Sherman, 5th Dist. No. 2011-CA-0012, 2011-Ohio-5794, this Court stated, in relevant
part, as follows: “This Court has consistently held that in a criminal matter, if a trial court
fails to dispose of all the criminal charges, the order appealed from is not a final,
appealable order. State v. Rothe, 5th Dist. No. 2008 CA 00044, 2009–Ohio 1852; State
v. Robinson, 5th Dist. No. 2008–Ohio–5885; State v. Huntsman (March 13, 2000), 5th
Dist. No. 1999–CA–00282.
{¶38} “In Robinson, supra at ¶ 11, this Court stated: {¶39} “‘In the case of a hung jury, jeopardy does not terminate when a hung jury
is discharged, rather the case against the defendant remains pending until the
remaining charge is either retried and/or dismissed with prejudice. State v. Cole,
Cuyahoga App. No. 88722, 2007–Ohio–3076. Furthermore, although a dismissal of the
hung jury charge may be contemplated on the record, unless the dismissal is
documented by a signed journal entry which is filed with the court, the order of the trial
court remains interlocutory and is not a final, appealable order”, citing Huntsman,
supra.’” Id at paragraphs 10-12. (Emphasis added).
{¶40} In the case sub judice, as is stated above, the jury was hung on the
charge of receiving stolen property. The trial court, pursuant to a Judgment Entry filed
on September 29, 2008, dismissed the same without prejudice. However, because the
charge was never dismissed with prejudice, there was no final appealable order. I
believe that this Court, therefore, did not have jurisdiction to hear appellant’s original
appeal.
{¶41} The next issue for determination is the affect of our original decision on an
unchallenged, non-final appealable order. This Court addressed such issue in State v.
Griffin, 5th Dist. No. 09CA21, 2010-Ohio-3517, after finding that this Court was without
jurisdiction to hear the appellant’s original appeal. In Griffin, after this Court affirmed the
appellant’s conviction, the appellant filed a motion for a final, appealable order pursuant
to Baker, supra. The trial court filed a new sentencing order and the appellant
appealed, arguing that she was entitled to a de novo direct appeal after resentencing.
In Griffin, this Court held, in relevant part, as follows: “Therefore, this court was without jurisdiction to hear the original appeal. The next issue is what is the affect of our
decision on an unchallenged non-final appealable order?
{¶42} “For this analysis, we find a series of cases, one of which is now pending
before the Supreme Court of Ohio, on the issue of resentencing.
{¶43} “In State v. Fischer, 118 Ohio App.3d 758, 2009-Ohio-1491, our brethren
from the Ninth District found despite a sentence being deemed void, their jurisdiction on
appeal after resentencing was limited to issues raised on the resentencing and barred
the appellant from raising any and all issues related to the conviction. We note this
matter is currently pending in the Supreme Court of Ohio, Case No. 2009-0897, heard
March 30, 2010.1
{¶44} “Prior to the Fischer decision, the Supreme Court of Ohio ruled in a writ of
mandamus and/or procedendo action that a judgment entry that failed to comply with
Crim.R. 32(C) was not a final appealable order and mandamus and procedendo would
lie relative to an order of resentencing. State ex rel, Culgan v. Medina County Court of
Common Pleas, 119 Ohio St.3d 535, 2008-Ohio-4609.
1 The correct citation for the Ninth District Fischer case is 181 Ohio App.3d 758. The Ohio Supreme Court, in State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, affirmed the judgment of the Ninth District Court of Appeals. The Ohio Supreme Court, in its December 23, 2010, decision, held in the syllabus as follows: “1. A sentence that does not include the statutorily mandated term of postrelease control is void, is not precluded from appellate review by principles of res judicata, and may be reviewed at any time, on direct appeal or by collateral attack. “2.The new sentencing hearing to which an offender is entitled under State v. Bezak is limited to proper imposition of postrelease control. (State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961, syllabus, modified.) “3. Although the doctrine of res judicata does not preclude review of a void sentence, res judicata still applies to other aspects of the merits of a conviction, including the determination of guilt and the lawful elements of the ensuing sentence. “4. The scope of an appeal from a resentencing hearing in which a mandatory term of postrelease control is imposed is limited to issues arising at the resentencing hearing.” {¶45} “Seizing on the language of Culgan, the Ninth District revisited its decision
in Fischer and found in a postrelease control resentencing, they may entertain all issues
relative to the underlying conviction and/or trial:
{¶46} “‘The implication of the Supreme Court's opinion in Culgan is that
regardless of whether a defendant has already appealed his conviction, if the order from
which the first appeal was taken is not final and appealable, he is entitled to a new
sentencing entry which can itself be appealed. Although the connection between Culgan
and cases involving postrelease control has not yet been explicitly stated, the logic
inherent in recent Supreme Court cases regarding postrelease control leads to a similar
result. See Fischer, 2009-Ohio-1491, at ¶ 15, 181 Ohio App.3d 758, 910 N.E.2d 1083
(Dickinson, J., concurring) (observing that two of the appellant's assignments of error,
which challenged his underlying conviction and the continuing viability of this Court's
earlier opinion in his direct appeal, were ‘the logical extension of the Ohio Supreme
Court's decisions in State v. Simpkins, 117 Ohio St.3d 420, 884 N.E.2d 568, 2008-Ohio-
1197, and State v. Bezak, 114 Ohio St.3d 94, 868 N.E.2d 961, 2007-Ohio-3250.’).’”
State v. Harmon (September 2, 2009), Summit App. No. 24495, 2009-Ohio-4512, ¶ 6.
{¶47} “What the Ninth District did in Harmon was to find that a non-final
appealable order was a void judgment. The Supreme Court of Ohio in Baker and
Culgan never termed a non-final appealable order as a void judgment. The issue still
remains open. Can a subsequent affirmance of a conviction and sentence by an
appellate court rectify a non-final appealable order?
{¶48} “In State ex rel. Moore v. Krichbaum, Mahoning App. No. 09 MA 201,
2010-Ohio-1541, our brethren from the Seventh District addressed this issue at ¶ 13: {¶49} “‘In Culgan, the Supreme Court of Ohio considered whether a defendant
was entitled to writs of mandamus and procedendo compelling the trial court to enter a
judgment on his convictions that complied with Crim.R. 32(C), even though his
convictions in 2002 had been previously reviewed and affirmed on a direct appeal.
Culgan at ¶ 3. The Ohio Supreme Court concluded that the defendant was entitled to a
new sentencing entry irrespective of prior appellate review, because the original
sentencing entry did not constitute a final appealable order. Id. at ¶ 10-11, 895 N.E.2d
805. Because the Ohio Supreme Court applied Baker to Culgan's petitions even though
Culgan's convictions and direct appeal had been finalized prior to the decision in Baker,
this Court can no longer hold that Baker may only be applied prospectively. We
therefore conclude that we are obligated to apply Baker retrospectively.’”
{¶50} “Reluctantly, we reach the same conclusion as our brethren from the
Seventh District…” Id at paragraphs 25-34.
{¶51} The Ohio Supreme Court, in State v. Griffin, 127 Ohio St.3d 266, 2010-
Ohio-5948, 938 N.E.2d 1036, vacated the judgment of this Court and remanded the
matter to this Court for application of State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-
3831, 935 N.E.2d 9. This Court, after finding that Ketterer had no application,
reimposed our original reversal and remand. See State v. Griffin, Coshocton App. No.
09-CA-21, 2011-Ohio-1638. In doing so, we noted that “there has been no guidance
provided to the appellate courts on the applicability of res judicata to a non-final order
pursuant to Baker.” Id at paragraph 31.
{¶52} I acknowledge that Griffin was a Baker type non-final appealable order in
that the entry of conviction was not complete. It did not deal with the situation we have in the case sub judice wherein one of the charges was not finally disposed of. However,
I would find Griffin analogous in that it deals with a non-final appealable order and the
validity of a decision by the Court of Appeals in ruling on a non-final appealable order.
{¶53} Based on the foregoing, I would find that there is no final, appealable
order in this case and that this Court did not have jurisdiction to hear the original appeal.
I would, therefore, sustain both assignments of error and reverse and remand this
matter.
___________________________________
Judge Julie A. Edwards
JAE/dr IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : : Plaintiff-Appellee : : : -vs- : JUDGMENT ENTRY : FRED L. MANNS, JR. : : Defendant-Appellant : CASE NO. 11-CA-28
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Richland County Court of Common Pleas is affirmed. Costs assessed
to appellant.
_________________________________ HON. W. SCOTT GWIN
_________________________________ HON. JULIE A. EDWARDS
_________________________________ HON. PATRICIA A. DELANEY