State v. Szuch Fishery 12, L.L.C.

2024 Ohio 1431

• Court: Ohio Court of Appeals
• Decided: April 15, 2024
• Docket: 2024-A-0010, 2024-A-0011, 2024-A-0012
• Status: Published

Opinion

[Cite as State v. Szuch Fishery 12, L.L.C., 2024-Ohio-1431.]

IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT ASHTABULA COUNTY

STATE OF OHIO, CASE NOS. 2024-A-0010 2024-A-0011 Plaintiff-Appellant/ 2024-A-0012 Cross-Appellee, Criminal Appeals from the - vs - Court of Common Pleas

SZUCH FISHERY 12 LLC, et al., Trial Court Nos. 2023 CR 00279 Defendants-Appellees/ 2023 CR 00280 Cross-Appellants. 2023 CR 00281

MEMORANDUM OPINION

Decided: April 15, 2024 Judgment: Appeals and Cross-Appeals dismissed

Colleen M. O’Toole, Ashtabula County Prosecutor, Christopher R. Fortunato and Matthew J. Hebebrand, Assistant Prosecutors, 25 West Jefferson Street, Jefferson, OH 44047 (For Plaintiff-Appellant/Cross-Appellee).

Erik Wineland, Rohrbacher Trimble & Zimmerman Co., LPA, 405 Madison Avenue, 8th Floor, Toledo, OH 43604 (For Defendants-Appellees/Cross-Appellants).

JOHN J. EKLUND, J.

{¶1} On January 22, 2024, the trial court entered a judgment ruling on four

motions: defendants’ motions 1) for Handwriting Exemplar from Matthew Faust; 2) for

review of grand jury testimony; 3) to dismiss the indictment for tampering with records;

and 4) the state of Ohio’s motion to quash defendants’ three subpoenas.

{¶2} On motion one, the court stated “Counsel conceded this motion is now moot

* * *. Therefore, the Motion is withdrawn.” {¶3} On motion two, the court stated that “the Court concludes that Defendants

have shown a particularized need to have the grand jury transcript reviewed to determine

if the mistaken information was presented to the grand jury. A failure to review the grand

jury testimony would likely deprive the Defendants of a fair trial, and the particularized

need shown by the Defendants outweighs the need for secrecy.”

{¶4} “Therefore, Defendants’ Motion for Review of Grand Jury Testimony is

Granted. Accordingly, the Court will examine the grand jury transcript in camera * * *.

After the review * * * the Court may provide counsel with those portions of the transcript

relevant to the issue * * *. The transcript * * * shall be provided to the Court and shall

remain non-public and be filed under seal.”

{¶5} On motion three, the court stated that “Defendants’ Motion to Dismiss the

Indictment for Tampering With Records is held in abeyance” pending the in camera

review of the grand jury testimony.

{¶6} The court denied motion four, holding the documents sought were

“evidentiary and relevant” and “not otherwise procurable reasonably in advance of trial”

and were sought in good faith.

{¶7} Appellant/cross-appellee, “appellant,” has appealed from the rulings on

motions two and four. On motion two, the court made findings and ordered an in camera

review of grand jury transcripts. It did not order production of the transcripts to anyone.

That ruling is not a final appealable order. See Daher v. Cuyahoga Community College

District, 155 Ohio St.3d 271; 2018-Ohio-4462. As to motion four, the court merely denied

a motion to quash subpoenas. It neither ordered production of evidence nor prevented

Case Nos. 2024-A-0010, 2024-A-0011, 2024-A-0012 it. That is not a final appealable order. See State v. Pecsi, 11th Dist. Geauga Nos. 2021-

G-0019, 2021-G-0020, 2021-G-0021, 2021-Ohio-3565.

{¶8} As to appellees’ cross-appeals, in the absence of a direct appeal from a

conviction, appellees do not have an immediate right to appeal. See State v. Cook, 5th

Dist. Fairfield No. 07 CA 39, 2007-Ohio-6446, ¶ 15-16.

{¶9} Further, appellees state on their cross-appeals that they are appealing the

January 22, 2024 entry “declaring that the Defendants’ Motion for a Handwriting Exemplar

withdrawn and failing to find that the State committed a fraud upon the court.” These are

pretrial matters that are not immediately appealable because appellees have not been

convicted and sentenced. See Pecsi, ¶ 11-13.

{¶10} Accordingly, the appeals and cross-appeals are dismissed for lack of a final

appealable order.

{¶11} Appeals and cross-appeals dismissed.

MARY JANE TRAPP, J.,

ROBERT J. PATTON, J.,

concur.

Case Nos. 2024-A-0010, 2024-A-0011, 2024-A-0012