Court of Appeals of Ohio, Second District, Montgomery
Appeal from Juvenile Court Trial Court Case No. A-2017-001871
Schroeder ttorney for Appellant
Heather Jans, Attorney for Appellee
DECISION AND FINAL JUDGMENT ENTRY
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
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
(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
6} First, he asserts that delay in allowing an
appeal would be ...