Court of Appeals of Ohio, Eleventh District, Trumbull
Criminal Appeal from the Trumbull County Court of Common
Pleas. Case No. 2017 CR 00133. Judgment:
Watkins, Trumbull County Prosecutor; Christopher Becker,
Michael A. Burnett, and Ashleigh Musick, Assistant
Prosecutors, (For Plaintiff-Appellee/Cross-Appellant).
H. Shamansky, Donald L Regensburger, Colin Peters, and Sarah
A. Hill, Samuel H. Shamansky Co., LPA, (For
TIMOTHY P. CANNON, J.
This matter is before us on a notice of appeal and a notice
of cross-appeal from the judgment of conviction entered by
the Trumbull County Court of Common Pleas against Nasser Y.
Hamad. Hamad was sentenced to the Lorain Correctional
Institution on November 20, 2017, and filed his notice of
appeal on November 22, 2017. The state of Ohio, by and
through the prosecuting attorney, filed its notice of
cross-appeal on November 29, 2017.
Prior to the enactment of R.C. 2945.67, the state did not
have the right to appeal decisions in criminal cases.
"R.C. 2945.67 was enacted to balance the disparity
between a defendant's right to appeal and the absence of
any such right possessed by the State." State v.
Kole, 11th Dist. Ashtabula No. 99-A-0015, 2000 WL
1460031, *2 (Sept. 29, 2000) (citation omitted); see also
State v. DeJesus, 11th Dist. Ashtabula No. 99-A-0063,
2000 WL 1733562, *1 (Nov. 17, 2000). R.C. 2945.67 now grants
the state of Ohio a substantive right to appeal decisions in
criminal cases, which is limited to certain instances where
an appeal is either permitted as a matter of right or may be
permitted by leave of the appellate court.
The state may appeal, as a "matter of right," any
decision in a criminal case that (1) grants a motion to
dismiss all or part of an indictment, information or
complaint; (2) grants a motion to suppress evidence; (3)
grants a motion for the return of seized property; or (4)
grants postconviction relief. R.C. 2945.67(A). The state has
not appealed any such decision in the case sub judice.
The state may also appeal, as a matter of right, a sentence
imposed upon a defendant who is convicted of a felony.
Id., citing R.C. 2953.08. The state's right to
appeal a felony sentence is limited, however, to the grounds
enumerated in R.C. 2953.08(B)(1)-(3). Relevant here, R.C.
2953.08(B)(2) provides that a prosecuting attorney may appeal
a felony sentence on the grounds that the "sentence is
contrary to law."
Finally, the state may also appeal "any other decision,
except the final verdict" in a criminal case, but
only "by leave of the court to which the appeal
is taken." R.C. 2945.67(A). The prosecuting attorney
must seek leave from the appellate court according to the
procedure outlined in App.R. 5(C). "'A motion for
leave to appeal is a necessary prerequisite under R.C.
2945.67(A) for the state's right of appeal to attach. Any
failure to follow this directive deprives the appellate court
of jurisdiction and requires that such appeal be
dismissed.'" Kole, supra, at *3, quoting
State v. Metz, 4th Dist. Washington No. 93CA18, 1995
WL 695078, *5 (Nov. 20, 1995), citing generally State v.
Wallace, 43 Ohio St.2d 1 (1975). "Further, it is
irrelevant that the State raises its argument in a cross
appeal rather than in an appeal per se."
Id. at *4; see also State v. Williams, 1st
Dist. Hamilton Nos. C-060631 & C-060668, 2007-Ohio-5577,
In its cross-appeal, the state challenges (1) the trial
court's jury instruction on self-defense and (2) the
trial court's merger of certain counts of attempted
aggravated murder for sentencing purposes.
Pursuant to R.C. 2945.67(A), the state was required to seek
leave to appeal any alleged error with the trial court's
jury instructions. Because it did not so, we are without
jurisdiction to consider that assignment of error. Kole,
supra, at *4.
Pursuant to R.C. 2953.08(B)(2), the state was not required to
seek leave to assign as error that the trial court's
merger of certain felony offenses was "contrary to
law." See, e.g., State v. Wilson, 129 Ohio
St.3d 214, 2011-Ohio-2669, ¶14, citing State v.
Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, ¶4 and
R.C. 2953.08(A)(4) ("Pursuant to R.C. 2953.08(G)(2), an
appellate court may vacate a sentence and remand for a new
sentencing hearing if the sentence is contrary to law. A
sentence that contains an allied-offenses error is contrary
Due to Hamad's death, however, we conclude that this
assignment of error is moot. The justifications for allowing
Hamad's appeal to proceed after his death simply do not
apply to the state's cross-appeal. Were this court to
find that the trial court's entry of sentence contains an
allied-offenses error, there is no relief we could offer the
state without violating fundamental notions of due process.
Because it is moot, we are also without jurisdiction to
consider this assignment of error. See, e.g.,
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