Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. McCullough

Court of Appeals of Ohio, Eighth District, Cuyahoga

May 17, 2018

STATE OF OHIO PLAINTIFF-APPELLANT
v.
ANDRE D. McCULLOUGH, JR. DEFENDANT-APPELLEE

          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 Public Defenders

          BEFORE: Laster Mays, J., Boyle, P.J., and Blackmon, J.

          JOURNAL ENTRY AND OPINION

          ANITA LASTER MAYS, JUDGE

         {¶1} 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 decision.

         {¶2} 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. 4511.19(A)(1)(h).

         {¶3} 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.

         {¶4} 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 433.01(a)(1).

         {¶5} 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.

         However, 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.

         I. Termination of Felony Charges

         A.Standard of ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.