[Cite as State v. Shahin, 2024-Ohio-456.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellant, : No. 112829 v. :
MOHAMED SHAHIN, :
Defendant-Appellee. :
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED AND REMANDED RELEASED AND JOURNALIZED: February 8, 2024
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-22-671606-C
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, Owen W. Knapp, Assistant Prosecuting Attorney, for appellant.
Marein & Bradley and Cal E. Cumpstone, for appellee.
MICHAEL JOHN RYAN, J.:
Plaintiff-appellant the state of Ohio appeals from the trial court’s
May 10, 2023 judgment dismissing its case, with prejudice, against defendant-
appellee Mohamed Shahin. For the reasons that follow, we reverse and remand for
the trial court to enter a judgment dismissing the case without prejudice. In December 2022, the state charged Shahin in a one-count indictment
with grand theft of a motor vehicle, a fourth-degree felony. Trial was scheduled to
take place on May 10, 2023. On that date, the parties and counsel appeared before
the trial court and the trial court questioned the assistant prosecuting attorney as to
whether the state was prepared to proceed. Counsel responded that the state had
offered Shahin a plea to the crime of unauthorized use of a vehicle, a misdemeanor
of the first degree, and if Shahin did not accept the plea offer the state would dismiss
the case without prejudice. Upon further questioning by the trial court, the assistant
prosecuting attorney informed the court that if Shahin did not accept the plea offer,
it was the state’s intention to reindict him on charges of receiving stolen property
and unauthorized use of a motor vehicle.
Defense counsel informed the trial court that Shahin was rejecting the
plea offer, maintaining his innocence, and was ready for trial. According to counsel,
there was no new evidence or victims, and the state was merely attempting “to take
another bite at the apple.” Tr. 5. The assistant prosecuting attorney did not dispute
defense counsel’s statement regarding no new evidence or victims. According to the
assistant prosecuting attorney, the potential new charges were “a little mystery” to
the state. Id. at 7.
The trial court told the parties it was going to dismiss the case without
prejudice, but it would “be mindful as to how it comes back.” Id. The court then
stated: So this case is dismissed without prejudice and — let me just say this for the record. I think it kind of shows some bad faith on the part of the State if you are dismissing this case solely because you can’t coerce him to take a plea for a misdemeanor, and so your threat is, if you don’t [plea], then we’re going to reindict and we’re going to add a couple more charges to it. I have a problem with that, I really do. And you know what, I’m going to dismiss it with prejudice.
Id. at 7-8.
The hearing then concluded, without objection from the state. The
court issued its judgment, in which it denied the state’s request to dismiss without
prejudice and, instead, on its own accord, dismissed the case with prejudice. The
state appeals, raising the following two assignments of error for our review:
I. The trial court erred when it dismissed Appellee’s case with prejudice in the absence of a statutory or constitutional violation that would bar further prosecution.
II. The trial court committed plain error when it dismissed Appellee’s case with prejudice and when it denied the State’s motion to dismiss the case without prejudice.
Under R.C. 2945.67(A), “the state may appeal the dismissal of an
indictment whether the dismissal is with or without prejudice.” State v. Craig, 116
Ohio St.3d 135, 2007-Ohio-5752, 876 N.E.2d 957, ¶ 16. Generally, “[a] trial court’s
dismissal of an indictment is reviewed for an abuse of discretion.” State v. Strong,
8th Dist. Cuyahoga No. 100766, 2014-Ohio-4209, ¶ 7, citing State v. Walton,
8th Dist. Cuyahoga No. 87347, 2006-Ohio-4771, ¶ 4, and State v. Tankers, 8th Dist.
Cuyahoga Nos. 72398 and 72399, 1998 Ohio App. LEXIS 1724 (Apr. 23, 1998).
Here, the state contends that it “was not afforded a meaningful
opportunity to note its objections clearly on the record.” Although it is true that the hearing concluded directly after the trial court changed its mind about dismissing
without prejudice, there is nothing in the record indicating that the state was
prevented from objecting. Crim.R. 52(B) provides a mechanism by which parties
may obtain review of “plain errors” that affected “substantial rights” even where they
failed to object, however. “Plain error” exists only when it is clear the result would
have been otherwise but for the error. State v. Sanders, 92 Ohio St.3d 245, 263, 750
N.E.2d 90 (2001).
Crim.R. 48 governs the dismissal of an indictment, information, or
complaint, and provides that in the instance where the dismissal is done by the
court, the court “shall state on the record its findings of fact and reasons for the
dismissal.” Crim.R. 48(B). In general, Crim.R. 48 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. Troisi, 169 Ohio
St.3d 514, 2022-Ohio-3582, 206 N.E.3d 695, ¶ 40, quoting State v. Mills, 11th Dist.
Trumbull Nos. 2020-T-0046 and 2020-T-0047, 2021-Ohio-2722, ¶ 6, quoting State
v. Jones, 2d Dist. Montgomery No. 22521, 2009-Ohio-1957, ¶ 13, and citing State v.
Sutton, 64 Ohio App.2d 105, 108, 411 N.E.2d 818 (9th Dist.1979).
Not all violations of constitutional rights require a dismissal with
prejudice, however. Troisi at id. Rather, “[t]he demarcation between a dismissal
with and without prejudice rests with the constitutional prohibition against further
prosecution.” State v. Payne, 8th Dist. Cuyahoga No. 111693, 2023-Ohio-1294, ¶ 6. As the Supreme Court of Ohio has stated, “[d]ismissals with prejudice are more
appropriate for cases involving the deprivation of a defendant’s rights to a speedy
trial or against double jeopardy, which would preclude further proceedings.” Troisi
at id., citing State v. Michailides, 2018-Ohio-2399, 114 N.E.3d 382, ¶ 37 (8th Dist.),
and State v. Dunn, 8th Dist. Cuyahoga No. 101648, 2015-Ohio-3138, ¶ 22.
Here, the state contends that there is no indication in the record that
Shahin’s constitutional or statutory rights were violated and, further, the trial court
did not make such a finding. Shahin, on the other hand, contends that “dismissal
with prejudice of [his] case was supported by a violation of [his] due process rights
on the ground of prosecutorial vindictiveness.” We are not persuaded by Shahin’s
argument primarily because we find it premature.
“In order to be justiciable, a controversy must be ripe for review.”
Keller v. Columbus, 100 Ohio St.3d 192, 2003-Ohio-5599, 797 N.E.2d 964, ¶ 26.
“A claim is not ripe for our consideration if it rests on contingent future events that
may not occur as anticipated or may never occur at all.” State v. Loving, 180 Ohio
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[Cite as State v. Shahin, 2024-Ohio-456.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellant, : No. 112829 v. :
MOHAMED SHAHIN, :
Defendant-Appellee. :
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED AND REMANDED RELEASED AND JOURNALIZED: February 8, 2024
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-22-671606-C
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, Owen W. Knapp, Assistant Prosecuting Attorney, for appellant.
Marein & Bradley and Cal E. Cumpstone, for appellee.
MICHAEL JOHN RYAN, J.:
Plaintiff-appellant the state of Ohio appeals from the trial court’s
May 10, 2023 judgment dismissing its case, with prejudice, against defendant-
appellee Mohamed Shahin. For the reasons that follow, we reverse and remand for
the trial court to enter a judgment dismissing the case without prejudice. In December 2022, the state charged Shahin in a one-count indictment
with grand theft of a motor vehicle, a fourth-degree felony. Trial was scheduled to
take place on May 10, 2023. On that date, the parties and counsel appeared before
the trial court and the trial court questioned the assistant prosecuting attorney as to
whether the state was prepared to proceed. Counsel responded that the state had
offered Shahin a plea to the crime of unauthorized use of a vehicle, a misdemeanor
of the first degree, and if Shahin did not accept the plea offer the state would dismiss
the case without prejudice. Upon further questioning by the trial court, the assistant
prosecuting attorney informed the court that if Shahin did not accept the plea offer,
it was the state’s intention to reindict him on charges of receiving stolen property
and unauthorized use of a motor vehicle.
Defense counsel informed the trial court that Shahin was rejecting the
plea offer, maintaining his innocence, and was ready for trial. According to counsel,
there was no new evidence or victims, and the state was merely attempting “to take
another bite at the apple.” Tr. 5. The assistant prosecuting attorney did not dispute
defense counsel’s statement regarding no new evidence or victims. According to the
assistant prosecuting attorney, the potential new charges were “a little mystery” to
the state. Id. at 7.
The trial court told the parties it was going to dismiss the case without
prejudice, but it would “be mindful as to how it comes back.” Id. The court then
stated: So this case is dismissed without prejudice and — let me just say this for the record. I think it kind of shows some bad faith on the part of the State if you are dismissing this case solely because you can’t coerce him to take a plea for a misdemeanor, and so your threat is, if you don’t [plea], then we’re going to reindict and we’re going to add a couple more charges to it. I have a problem with that, I really do. And you know what, I’m going to dismiss it with prejudice.
Id. at 7-8.
The hearing then concluded, without objection from the state. The
court issued its judgment, in which it denied the state’s request to dismiss without
prejudice and, instead, on its own accord, dismissed the case with prejudice. The
state appeals, raising the following two assignments of error for our review:
I. The trial court erred when it dismissed Appellee’s case with prejudice in the absence of a statutory or constitutional violation that would bar further prosecution.
II. The trial court committed plain error when it dismissed Appellee’s case with prejudice and when it denied the State’s motion to dismiss the case without prejudice.
Under R.C. 2945.67(A), “the state may appeal the dismissal of an
indictment whether the dismissal is with or without prejudice.” State v. Craig, 116
Ohio St.3d 135, 2007-Ohio-5752, 876 N.E.2d 957, ¶ 16. Generally, “[a] trial court’s
dismissal of an indictment is reviewed for an abuse of discretion.” State v. Strong,
8th Dist. Cuyahoga No. 100766, 2014-Ohio-4209, ¶ 7, citing State v. Walton,
8th Dist. Cuyahoga No. 87347, 2006-Ohio-4771, ¶ 4, and State v. Tankers, 8th Dist.
Cuyahoga Nos. 72398 and 72399, 1998 Ohio App. LEXIS 1724 (Apr. 23, 1998).
Here, the state contends that it “was not afforded a meaningful
opportunity to note its objections clearly on the record.” Although it is true that the hearing concluded directly after the trial court changed its mind about dismissing
without prejudice, there is nothing in the record indicating that the state was
prevented from objecting. Crim.R. 52(B) provides a mechanism by which parties
may obtain review of “plain errors” that affected “substantial rights” even where they
failed to object, however. “Plain error” exists only when it is clear the result would
have been otherwise but for the error. State v. Sanders, 92 Ohio St.3d 245, 263, 750
N.E.2d 90 (2001).
Crim.R. 48 governs the dismissal of an indictment, information, or
complaint, and provides that in the instance where the dismissal is done by the
court, the court “shall state on the record its findings of fact and reasons for the
dismissal.” Crim.R. 48(B). In general, Crim.R. 48 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. Troisi, 169 Ohio
St.3d 514, 2022-Ohio-3582, 206 N.E.3d 695, ¶ 40, quoting State v. Mills, 11th Dist.
Trumbull Nos. 2020-T-0046 and 2020-T-0047, 2021-Ohio-2722, ¶ 6, quoting State
v. Jones, 2d Dist. Montgomery No. 22521, 2009-Ohio-1957, ¶ 13, and citing State v.
Sutton, 64 Ohio App.2d 105, 108, 411 N.E.2d 818 (9th Dist.1979).
Not all violations of constitutional rights require a dismissal with
prejudice, however. Troisi at id. Rather, “[t]he demarcation between a dismissal
with and without prejudice rests with the constitutional prohibition against further
prosecution.” State v. Payne, 8th Dist. Cuyahoga No. 111693, 2023-Ohio-1294, ¶ 6. As the Supreme Court of Ohio has stated, “[d]ismissals with prejudice are more
appropriate for cases involving the deprivation of a defendant’s rights to a speedy
trial or against double jeopardy, which would preclude further proceedings.” Troisi
at id., citing State v. Michailides, 2018-Ohio-2399, 114 N.E.3d 382, ¶ 37 (8th Dist.),
and State v. Dunn, 8th Dist. Cuyahoga No. 101648, 2015-Ohio-3138, ¶ 22.
Here, the state contends that there is no indication in the record that
Shahin’s constitutional or statutory rights were violated and, further, the trial court
did not make such a finding. Shahin, on the other hand, contends that “dismissal
with prejudice of [his] case was supported by a violation of [his] due process rights
on the ground of prosecutorial vindictiveness.” We are not persuaded by Shahin’s
argument primarily because we find it premature.
“In order to be justiciable, a controversy must be ripe for review.”
Keller v. Columbus, 100 Ohio St.3d 192, 2003-Ohio-5599, 797 N.E.2d 964, ¶ 26.
“A claim is not ripe for our consideration if it rests on contingent future events that
may not occur as anticipated or may never occur at all.” State v. Loving, 180 Ohio
App.3d 424, 2009-Ohio-15, 905 N.E.2d 1234, ¶ 4 (1oth Dist.).
While the assistant prosecuting attorney stated that it was the state’s
intention to reindict Shahin on a lesser charge than he was originally indicted on
(i.e., unauthorized use of a motor vehicle) and a new charge (i.e., receiving stolen
property), no new indictment had been filed as of the May 2023 hearing. If the state
were to reindict Shahin and add a new charge, his argument for prosecutorial
vindictiveness would then be ripe. Indeed, the trial court seemed to acknowledge as much when it stated that it would “be mindful as to how [the case] comes back” on
reindictment. Tr. 7.
Thus, on this record the trial court committed plain error in dismissing
the case with prejudice. See State v. Lindsey, 183 Ohio App.3d 727, 2009-Ohio-
4124, 918 N.E.2d 1020 (2d Dist.) (applying the plain-error doctrine in favor of the
state on the trial court’s dismissal of its case with prejudice). The state’s assignments
of error are sustained.
Judgment reversed; case remanded for the trial court to enter a
dismissal without prejudice.
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. Case remanded to the
trial court for further proceedings consistent with this opinion.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
________________________ MICHAEL JOHN RYAN, JUDGE
EILEEN T. GALLAGHER, P.J., and ANITA LASTER MAYS, J., CONCUR