Court of Appeals of Ohio, Eighth District, Cuyahoga
Criminal Appeal from the Cuyahoga County Court of Common
Pleas Case No. CR-16-611782-A
ATTORNEYS FOR APPELLANT Michael C. O'Malley Cuyahoga
County Prosecutor By: Erica Johnson Christopher D. Schroeder
Assistant County Prosecutors
ATTORNEYS FOR APPELLEE Mark Stanton Cuyahoga County Public
Defender By: Paul Kuzmins John T. Martin Assistant County
BEFORE: Laster Mays, J., Boyle, P.J., and Blackmon, J.
JOURNAL ENTRY AND OPINION
LASTER MAYS, JUDGE
The plaintiff-appellant the state of Ohio appeals the trial
court's decision to dismiss the indictment against
defendant-appellee Andre D. McCullough Jr.
("McCullough"). We affirm the trial court's
On November 3, 2016, McCullough was charged in Cleveland
Municipal Court with six misdemeanor offenses: driving while
under the influence of alcohol/drugs, in violation of
Cleveland Codified Ordinance 433.01(a)(1); operating a
vehicle under the influence of alcohol, in violation of R.C.
4511.19(A)(1)(h); driving under suspension, in violation of
Cleveland Codified Ordinance 435.07; failure to stop, in
violation of Cleveland Codified Ordinance 435.15; weaving, in
violation of Cleveland Codified Ordinance 431.34(B); and
failure to control, in violation of Cleveland Codified
Ordinance 431.34(A). On November 29, 2016, McCullough pleaded
no contest to driving while under the influence of
alcohol/drugs, and the city nolled the other charges. On
December 13, 2016, after McCullough's plea to the
misdemeanor charges, he was charged in Cuyahoga County Common
Pleas Court with failure to comply, a third-degree felony, in
violation of R.C. 2921.331(B); driving while under the
influence, a first-degree misdemeanor, in violation of R.C.
4511.19(A)(1)(a); and driving while under the influence, a
first-degree misdemeanor, in violation of R.C.
On January 10, 2017, McCullough appeared for sentencing in
Cleveland Municipal Court and was sentenced to ten days in
jail, ordered to attend Alcoholic Anonymous meetings three
times a week, and had his license suspended for two years.
On May 22, 2017, McCullough filed a motion to dismiss on
double jeopardy grounds. He argued that double jeopardy
precluded the state from prosecuting him again on all three
counts in the indictment because he was already charged,
convicted, and sentenced by the Cleveland Municipal Court.
The state conceded that McCullough's conviction in the
municipal court barred them from charging him of violating
R.C. 4511.19(A)(1)(a) and R.C. 4511.19(A)(1)(h). However the
state did not agree that charging him with R.C. 2921.331(B)
was barred by double jeopardy because that violation was not
identical to a violation of Cleveland Codified Ordinance
The trial held an oral hearing on McCullough's motion to
dismiss. During that hearing, McCullough stated that the
state sent information about the indictment to the incorrect
address, and he did not receive any notice until after he was
sentenced in January. The trial issued a journal entry
stating that the motion to dismiss was granted, but did not
state its reasons in the journal entry. As a result, the
state filed an appeal assigning three errors for our review:
I. The trial court erred by dismissing Count 3, failure to
comply, on double jeopardy grounds as a successive
prosecution for the same offense because failure to comply is
not the same offense as driving while under the influence;
II. The trial court erred by finding that McCullough had a
reasonable belief that his no contest plea in municipal court
to driving while under the influence would terminate
unrelated felony charges; and
III. The trial court failed to state on the record its
finding of fact and reasons for dismissing the indictment as
required under Crim.R. 48(B), and those findings of fact and
reasons are not apparent from the record.
McCullough concedes, on the first assignment of error, that
the two charges are not in violation of his double jeopardy
rights. We will review the remaining the two errors.
Termination of Felony Charges
A.Standard of ...