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In re N.A.M.

Court of Appeals of Ohio, Second District, Montgomery

February 1, 2018

IN RE: N.A.M.

          Civil Appeal from Juvenile Court Trial Court Case No. A-2017-001871

          Kelly Schroeder ttorney for Appellant

          Heather Jans, Attorney for Appellee

          DECISION AND FINAL JUDGMENT ENTRY

          PER CURIAM:

         {¶ 1} N.A.M. appealed the juvenile court's order transferring him to adult court for criminal prosecution. His adult case has not yet been resolved. The State of Ohio moved to dismiss the appeal, arguing that the "mandatory bindover" order was not final and appealable under In re Becker, 39 Ohio St.2d 84, 314 N.E.2d 158 (1974). N.A.M. responded that the order was final as a provisional remedy under the statute defining final appealable orders. R.C. 2505.02(B)(4). He argues he should have the opportunity to immediately appeal the juvenile court's decision not to conduct an amenability hearing during mandatory bindover proceedings. See State v. Aalim, 150 Ohio St.3d 463, 2016-Ohio-8278, 83 N.E.3d 862 ("Aalim I ") (mandatory transfers without amenability determinations violate due process). Upon consideration, we conclude that the mandatory bindover order is not final and appealable at this time and dismiss the appeal for lack of jurisdiction.

         {¶ 2} It is well established that an appellate court has jurisdiction to review only final orders or judgments of the lower courts in its district. Section 3(B)(2), Article IV, Ohio Constitution; R.C. 2505.02. We have no jurisdiction to review an order or judgment that is not final, and an appeal therefrom must be dismissed. Gen. Acc. Ins. Co. v. Ins. Co. of N. Am., 44 Ohio St.3d 17, 20, 540 N.E.2d 266 (1989).

         {¶ 3} R.C. 2505.02 defines final orders. N.A.M. relies on the provisional remedy section:

An order that grants or denies a provisional remedy and to which both of the following apply:
(a) The order in effect determines the action with respect to the provisional remedy and prevents a judgment in the action in favor of the appealing party with respect to the provisional remedy.
(b) The appealing party would not be afforded a meaningful or effective remedy by an appeal following final judgment as to all proceedings, issues, claims, and parties in the action.

R.C. 2505.02(B)(4). Thus, to determine if the mandatory bindover order is final under this section, we consider "(1) whether the orders are provisional remedies, (2) whether the orders determine the action and prevent a judgment in [N.A.M.'s] favor with respect to the provisional remedies, and (3) whether [N.A.M.] would have a meaningful or effective remedy if his appeal must wait until after final judgment in his case." In re D.H., Ohio Sup. Ct. Slip Opinion No. 2018-Ohio-17, ¶ 11.

         {¶ 4} This case turns on the third prong, as the Supreme Court of Ohio has held that a mandatory bindover order is a provisional remedy within the statute's definition. In re A.J.S., 120 Ohio St.3d 185, 2008-Ohio-5307, 897 N.E.2d 629, ¶ 23; see also In re D.H. at ¶ 12-13. And, the bindover order here determined the action with respect to that provisional remedy. In re D.H. at ¶ 14-15.

         {¶ 5} To satisfy the third prong of the test, N.A.M. must "demonstrate that he would lack a meaningful or effective remedy if he must wait to appeal until after final judgment in the adult court." In re D.H. at ¶ 16. N.A.M. argues that an appeal after an adult conviction "is meaningless" for several reasons related to the amenability hearing to which he claims to be entitled.

         {¶ 6} First, he asserts that delay in allowing an appeal would be ...


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