Court of Appeals of Ohio, First District, Hamilton
Appeal From: Hamilton County Court of Common Pleas TRIAL NO.
T. Deters, Hamilton County Prosecuting Attorney, and Judith
Anton Lapp, Assistant Prosecuting Attorney, for
Raymond T. Faller, Hamilton County Public Defender, and David
Hoffman, Assistant Public Defender, for Defendant-Appellant.
In this opinion, we address an issue that was not addressed
by the Supreme Court of Ohio in its recent decision in
State v. Jackson___, Ohio St.3d___,
2017-Ohio-7469___, N.E.3d, that is, whether, in a criminal
action involving a multicount indictment, the trial
court's failure to dispose of a count on which the jury
fails to reach a verdict prevents the judgment of conviction
on the other counts from being final and appealable. We
answer the question in the affirmative.
In this case, Steven Allen Craig was indicted on one count of
rape and two counts of felonious assault. Craig pleaded not
guilty to all counts, and the case proceeded to a jury trial.
The jury returned guilty verdicts on the felonious-assault
counts, but was unable to reach a verdict on the rape count.
The trial court sentenced Craig on the felonious-assault
counts and declared a mistrial on the rape count. The rape
charge was not dismissed and remains pending. This appeal
Our jurisdiction is limited to the review of final orders and
judgments. Ohio Constitution, Article IV, Section 3(B)(2);
R.C. 2505.03. In Jackson, the Supreme Court of Ohio
held that a dismissal without prejudice of a count in a
multicount indictment does not prevent the judgment of
conviction on the remaining counts from being a final,
appealable order. Jackson at ¶ 9. The court
further held that "a judgment of conviction is a final,
appealable order if it complies with Crim.R. 32(C) and
State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204,
958 N.E.2d 142, ¶ 14, and that counts that are
dismissed are resolved and do not prevent
the judgment of conviction from being final and
appealable." (Emphasis added.) Id.
In Jackson, the defendant was convicted after a jury
trial of some, but not all, of the counts in the indictment.
The jury was unable to reach a verdict on two counts of
kidnapping, but found the defendant guilty of grand theft and
aggravated robbery. The trial court imposed sentence on the
theft and robbery counts, and declared a mistrial on the
kidnapping counts. On the state's motion, the court
dismissed the kidnapping counts without prejudice. On appeal,
the Eighth District held that the dismissal without prejudice
rendered the judgment a nonfinal order, and sua sponte
dismissed Jackson's appeal for lack of a final,
appealable order. State v. Jackson, 8th Dist.
Cuyahoga No. 103035, 2016-Ohio-704, ¶ 14.
The Supreme Court reversed, holding that a dismissal without
prejudice of a count in a multicount indictment does not
prevent the judgment of conviction on the remaining counts
from being a final, appealable order where the judgment
complied with Crim.R. 32(C) and Lester at ¶ 14.
Jackson___, Ohio St.3d___, 2017-Ohio-7469,
N.E.3d___, at ¶ 9, 16. The court noted that a valid
judgment of conviction requires a full resolution of all
counts for which there were convictions, but does not "
'require a reiteration of those counts and specifications
for which there were no convictions, but were
resolved in other ways, such as dismissals,
nolled counts, or not guilty findings.' " (Emphasis
sic.) Id. at ¶ 11, quoting State ex rel.
Davis v. Cuyahoga Cty. Court of Common Pleas, 127 Ohio
St.3d 29, 2010-Ohio-4728, 936 N.E.2d 41, ¶ 2. The court
held that counts that are dismissed are resolved and,
therefore, do not prevent a judgment of conviction from being
final and appealable. Id. at ¶ 9-10. And it
concluded that "[t]he prosecution of the kidnapping
counts terminated once the trial court dismissed those
counts." Id. at ¶ 16.
The court in Jackson noted that allowing a dismissal
without prejudice to prevent an order in a criminal action
from being a final, appealable order would effectively stay
appellate review of convictions on charges for which the
defendant had been found guilty and sentenced until the state
either sought a new indictment or the statute of limitations
for the dismissed counts expired. Id. at ¶ 15.
As this court has explained, "A conditional dismissal in
a criminal matter would allow a prosecutor to keep a
defendant perpetually indicted, without any idea concerning,
or control over, when the matter would be resolved."
State ex rel. Flynt v. Dinkelacker, 156 Ohio App.3d
595, 2004-Ohio-1695, 807 N.E.2d 967, ¶ 15 (1st Dist).
Here, like Jackson, the trial court declared a
mistrial on a count upon which the jury could not reach a
verdict and sentenced the defendant on the counts upon which
the jury returned guilty verdicts. Unlike Jackson,
however, this charge remains pending. It has not been
dismissed or otherwise resolved in any way. The granting of a
mistrial "has long been held not to be a final
appealable order 'for the basic reason that it is not a
judgment or order in favor of either of the parties which
gives finality to the case.' " State v.
Nixon, 5th Dist. Richland No. 2016 CA 0008, 2017-Ohio-8,
¶ 16, quoting Mack v. Gulf Oil Co., Inc., 10th
Dist. Franklin No. 76AP-299, 1976 WL 190161 (Aug. 24, 1976),
citing Kauffman v. Schauer, 121 Ohio St. 478, 169
N.E. 566 (1929). Here, the trial court's granting of a
mistrial on the rape count did not resolve that count, and
therefore, prevented the court's judgment from being a
final, appealable order.
A long line of cases from Ohio courts, including this one,
have held that an order in a criminal case is not final where
the trial court fails to dispose of all the charges that are
brought against the defendant in an action. See State v.
Pippin, 1st Dist. Hamilton No. C-150061, 2016-Ohio-312,
¶ 5, citing State ex rel. McIntyre v. Summit Cty.
Court of Common Pleas, 144 Ohio St.3d 589,
2015-Ohio-5343, 45 N.E.3d 1003, ¶ 4, 9-10 (plurality
opinion); State v. Pace, 1st Dist. Hamilton No.
C-970546, 1998 WL 293850 (June 5, 1998); State v.
Allman, 2d Dist. Montgomery No. 24693, 2012-Ohio-413;
State v. Gillian, 4th Dist. Gallia No. 15CA3,
2016-Ohio-3232; State v. Huntsman, 5th Dist. Stark
No. 1999-CA-00282, 2000 WL 330013 (Mar. 13, 2000); State
v. Ocasio, 8th Dist. Cuyahoga No. 103972, 2017-Ohio-88;
State v. Heavilin, 9th Dist. Medina No. 15CA0034-M,
2016-Ohio-1284; State v. Garner, 11th
Dist. Trumbull No. 2002-T-0025, 2003-Ohio-5222.
Jackson did not alter this law, but rather explained
that a dismissed charge resolves the matter, even if it is
dismissed without prejudice.
Recently, this court in State v. Pippin, dismissed
an appeal for lack of jurisdiction. We stated,
"Importantly, however, the trial court neglected to
dispose of four other charges against Mr. Pippin. A long line
of authority tells us that a trial court's entry is not a
'final order' where the court fails to dispose of all
the charges in an action against a criminal defendant."
Pippin at ¶ 1. We recognized that "[a]
'hanging charge' prevents the conviction from being a
final order under R.C. 2505.02(B) because it does not
determine the action, i.e., resolve the case."
Id. at ¶ 6, quoting State v. Johnson,
4th Dist. Scioto No. 14CA3660, 2015-Ohio-3370. Finally, we
stated, "A number of courts, including this one, have
held that a court fails to comply with its mandatory duty
under Crim.R. 32(C) when it leaves a charge unresolved, and
that because of this failure such a judgment is not a final
order." Id. at ¶ 7.
We find that Jackson does not alter this conclusion.
We join other Ohio courts that have held that in a criminal
case involving a multicount indictment, a trial court's
order that fails to dispose of a count on which the jury
failed to reach a verdict is not a final, appealable order.
See State v. Purdin, 4th Dist. Adams No. 11CA909,
2012-Ohio-752; State v. Sherman, 5th Dist. Richland
No. 2011-CA-0012, 2011-Ohio-5794; State v. Bourdess,
8th Dist. Cuyahoga No. 70541, 1997 WL 284777 (May 29, 1997);
State v. Sims, 8th Dist. Cuyahoga No. 85608,
2005-Ohio-5846, fn. 1; State v. Clay, 11th Dist.
Trumbull No. ...