Court of Appeals of Ohio, Eighth District, Cuyahoga
Criminal Appeal from the Cuyahoga County Court of Common
Pleas Case No. CR-17-615343-A
ATTORNEYS FOR APPELLANT Mark A. Stanton Cuyahoga County
Public Defender Erika B. Cunliffe Assistant Public Defender
ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga
County Prosecutor Christopher D. Schroeder Kevin R.
Filiatraut Assistant County Prosecutors
BEFORE: Stewart, P.J., Celebrezze, J., and Keough, J.
J. STEWART, P. J.
In 1996, defendant-appellant Sherman Anderson shot his
girlfriend in the head and left her in a "persistent
vegetative state." He pleaded guilty to attempted
murder. The victim died in 1998 as a result of her injuries.
Nineteen years later, the state charged Anderson with murder.
Citing State v. Carpenter, 68 Ohio St.3d 59, 60, 623
N.E.2d 66 (1993), Anderson filed a motion to dismiss the
indictment because the state did not expressly reserve the
right to file additional charges on the record at the time of
his guilty plea. The court denied the motion to dismiss,
finding that the state did not anticipate the 1996 plea would
terminate the entire incident. Anderson appeals.
We first address a motion to dismiss the appeal that has been
referred for our consideration. The state argues that the
court's denial of Anderson's motion to dismiss did
not arise from a final order and that we lack jurisdiction to
consider the appeal.
The jurisdiction of a court of appeals is constitutionally
limited to the review of "final" orders.
See Section 3(B)(2), Article IV, Ohio Constitution
("Courts of appeals shall have such jurisdiction as may
be provided by law to review and affirm, modify, or reverse
judgments or final orders of the courts of record inferior to
the court of appeals within the district * * *.").
The general rule is that an order denying a defendant's
motion to dismiss an indictment is an interlocutory order
that is not immediately appealable. State v.
Mitchell 8th Dist. Cuyahoga No. 104314, 2017-Ohio-94,
¶ 10. This is because an order denying a defendant's
motion to dismiss an indictment does not determine the action
as required by R.C. 2505.02(B)(1). State v. Shaffer,
8th Dist. Cuyahoga No. 87552, 2006-Ohio-5563, ¶ 21.
Nevertheless, "[t]here are unusual instances when orders
which standing alone are not considered final appealable
orders become appealable by virtue of the exceptional
circumstances under which they are rendered." State
v. Eberhardt, 56 Ohio App.2d 193, 198, 381 N.E.2d 1357
(8th Dist.1978). These types of orders tend to arise in the
context of a provisional remedy, which is defined as "a
proceeding ancillary to an action[.]" R.C.
2505.02(A)(3). If an order grants or denies a provisional
remedy and both determines the action with respect to the
provisional remedy and leaves the appealing party without a
meaningful remedy by having to wait for the conclusion of all
proceedings before being allowed to appeal, the order can be
final and may be reviewed on appeal. See R.C.
In State v. Anderson, 138 Ohio St.3d 264,
2014-Ohio-542, 6 N.E.3d 23, ¶ 49, the Ohio Supreme Court
held that an order denying a motion to dismiss on
double-jeopardy grounds is a final order under R.C.
2505.02(B)(4) as a provisional remedy. It stated that it had
"little trouble concluding that a motion to dismiss on
double-jeopardy grounds is an ancillary proceeding,"
id. at ¶ 48, because a motion to dismiss an
indictment on grounds of double jeopardy is
"'separate from and entirely collateral to the
substantive issues at trial.'" Id. at
¶ 50, quoting John Paul Sellers III, Between a Rock
and a Hard Place: Does Ohio Revised Code Section 2505.02
Adequately Safeguard a Person's Right Not to Be
Tried?, 28 Ohio N.U.L.Rev. 285, 299 (2002). The Supreme
Court also found that "a decision on a motion to dismiss
on double-jeopardy grounds determines the action because it
permits or bars the subsequent prosecution."
Anderson at ¶ 52. Finally, noting that double
jeopardy barred a second trial for the same offense, the
Supreme Court held that absent an interlocutory appeal, a
party seeking dismissal of an indictment on double-jeopardy
grounds would not be afforded a meaningful review of the
decision if forced to go to trial before being able to
appeal. Id. at ¶ 59.
Although this case does not involve double jeopardy, we think
the Anderson decision applies by implication. The
provisional remedy definition supplied in R.C. 2505.02(A)(3)
is nonexhaustive, State v. Muncie, 91 Ohio St.3d
440, 448, 746 N.E.2d 1092 (2001), and, like a motion to
dismiss on double jeopardy grounds, the motion that Anderson
filed in this case grew out of the prosecution and was
"attendant" upon the underlying prosecution.
Anderson at ¶ 49. We likewise have no
difficulty finding that a decision on the motion to dismiss
the indictment determines the action because it permits or
prohibits a second prosecution. Id. . at ¶ 52.
With respect to the final prong of the analysis, there is no
doubt that Anderson would not be afforded a meaningful review
absent an interlocutory appeal. In Carpenter, the
Supreme Court held:
the state cannot indict a defendant for murder after the
court has accepted a negotiated guilty plea to a lesser
offense and the victim later dies of injuries sustained in
the crime, unless the state expressly reserves the right to
file additional ...