Court of Appeals of Ohio, Eighth District, Cuyahoga
Criminal Appeal from the Cuyahoga County Court of Common
Pleas Case No. CR-14-585521-B
Michael C. O'Malley, Cuyahoga County Prosecuting
Attorney, and Daniel T. Van, Assistant Prosecuting Attorney,
Stanton, Cuyahoga County Public Defender, and Erika B.
Cunliffe, Assistant Public Defender, for appellant.
JOURNAL ENTRY AND OPINION
D. CELEBREZZE, JR., JUDGE.
1} Defendant-appellant, Michael Jenkins
("appellant"), brings the instant appeal
challenging the trial court's judgment denying his motion
to dismiss based on preindictment delay. Specifically,
appellant argues that he was prejudiced by the 20-year delay
in prosecution, and that the trial court failed to follow
this court's "directive" in State v.
Jenkins, 2018-Ohio-483, 106 N.E.3d 216 (8th Dist.)
(hereinafter "Jenkins II ").
After a thorough review of the record and law, this court
dismisses the appeal.
Factual and Procedural History
2} The instant appeal arose from an incident that
occurred on July 2, 1994, involving appellant, his
codefendant Oscar Dickerson, Jerry Polivka, and the victim in
this case, J.R. As the victim was walking home during the
early morning hours, she was approached by appellant,
Dickerson, and Polivka in a vehicle. Polivka was driving the
vehicle, and appellant and Dickerson were his passengers. The
men offered the victim a ride home. The victim got inside the
vehicle, although it was disputed whether the victim agreed
to get into the vehicle or was forced inside, and the group
went to a hotel. The victim alleged that appellant and
Dickerson raped her inside the hotel room.
3} On May 15, 2014, in Cuyahoga C.P. No.
CR-14-585521-B,  appellant was charged in a five-count
indictment with: (1)-(2) rape, first-degree felony violations
of R.C. 2907.02(A)(2); (3)-(4) complicity, violations of R.C.
2923.03(A)(2); and (5) kidnapping, a first-degree felony in
violation of R.C. 2905.01(A)(4). Appellant was arraigned on
June 4, 2014. He pled not guilty to the indictment.
4} A jury trial commenced on November 12, 2014. The
jury returned its verdict on November 18, 2014. The jury
found appellant not guilty on Counts 1 and 3, and guilty on
Counts 2, 4, and 5.
5} The trial court held a sentencing hearing on
December 29, 2014. The trial court sentenced appellant to a
prison term of eight years. The trial court declared
appellant a sexually oriented offender and reviewed
appellant's registration and verification requirements.
6} On January 7, 2015, the state filed an appeal
challenging the trial court's sentence. State v.
Jenkins, 8th Dist. Cuyahoga No. 102462, 2015-Ohio-4583
("Jenkins I "). The state argued that the
trial court erred by imposing a definite prison term, rather
than an indefinite prison sentence pursuant to the sentencing
laws that were in effect at the time appellant committed the
offenses. On November 5, 2015, this court affirmed
7} Unlike appellant, Dickerson filed a pretrial
motion to dismiss based on preindictment delay on November 5,
2014. The trial court denied Dickerson's motion as
untimely. Dickerson was convicted of rape, complicity, and
kidnapping. The trial court sentenced Dickerson to an
aggregate five-year prison term.
8} When the state filed an appeal challenging the
trial court's imposition of a definite prison sentence,
Dickerson filed a cross-appeal in March 2016 challenging his
convictions. State v. Dickerson, 2016-Ohio-807, 60
N.E.3d 699 (8th Dist.) (hereinafter
"Dickerson I "). In his cross-appeal,
Dickerson argued, in relevant part, that the trial court
erred in denying his motion to dismiss based on preindictment
delay, and that his trial counsel was ineffective for failing
to file the motion to dismiss in a timely manner.
Id. at ¶ 4. On appeal, this court concluded
that Dickerson's trial counsel was ineffective for
failing to file a timely motion to dismiss based on
preindictment delay. Accordingly, this court vacated
Dickerson's convictions and remanded the matter to the
trial court "to vacate [Dickerson's]
conviction[s]." Id. at ¶ 54-55. The state
filed an appeal in the Ohio Supreme Court challenging this
court's judgment in Dickerson I, and the court
declined to accept the state's appeal. State v.
Dickerson, 146 Ohio St.3d 1428, 2016-Ohio-4606, 52
9} On July 27, 2016, the Ohio Supreme Court issued its
decision in State v. Jones, 148 Ohio St.3d 167,
2016-Ohio-5105, 69 N.E.3d 688. In Jones, the court
addressed the issue of preindictment delay and established a
burden-shifting framework for analyzing due process claims.
Id. at ¶ 13.
10} After the Ohio Supreme Court issued its decision in
Jones, the state filed a motion for reconsideration
in the Ohio Supreme Court. The Ohio Supreme Court granted the
state's motion for reconsideration, vacated this
court's judgment in Dickerson I, and remanded
the matter to this court with instructions to apply the
Jones rationale. State v. Dickerson, 146
Ohio St.3d 1493, 2016-Ohio-5585, 57 N.E.3d 1172.
11} On remand from the Ohio Supreme Court, this court applied
the burden-shifting analysis established in Jones
and concluded, again, that Dickerson's trial counsel was
ineffective for failing to file a timely motion to dismiss
based on preindictment delay. State v. Dickerson,
8th Dist. Cuyahoga No. 102461, 2017-Ohio-177, ¶ 64
(hereinafter "Dickerson II ").
Unlike this court's judgment in Dickerson I,
which remanded the case to the trial court with instructions
to vacate Dickerson's convictions, the panel in
Dickerson II reversed Dickerson's convictions.
Dickerson II at id. The state filed an
appeal challenging the decision in Dickerson II, and
the Ohio Supreme Court declined to accept the state's
appeal on October 11, 2017.
12} On December 2, 2016, appellant filed a delayed appeal
arguing, in relevant part, that the trial court erred in
failing to dismiss the case based on preindictment delay, and
that his trial counsel was ineffective for failing to file a
motion to dismiss based on preindictment delay. Jenkins
II, 2018-Ohio-483, 106 N.E.3d 216, ¶ 1. This court
acknowledged that appellant's appeal was
"identical" to the appeal filed by Dickerson in
March 2016. Id. This court concluded that
appellant's counsel was ineffective for failing to file a
motion to dismiss based on preindictment delay. Id.
at ¶ 45. Accordingly, this court reversed
appellant's convictions and remanded the matter to the
trial court "for further proceedings consistent with
this opinion." Id. at ¶ 46.
13} This court's decision in Jenkins II was
issued on February 8, 2018. On February 16, 2018, appellant
filed a motion to dismiss based on preindictment delay.
Therein, appellant argued that he was prejudiced by the delay
in prosecution because Polivka died and was no longer
available as a witness and that the delay in prosecution was
14} The trial court held two hearings on the issue of
preindictment delay. The trial court held the first hearing
on February 22, 2018, to address the issue of whether
appellant was actually prejudiced by the delay in
prosecution. The trial court held a second hearing on May 3,
2018, to address the issue of whether the delay in
prosecution was justifiable.
15} On June 4, 2018, the trial court issued a judgment entry
denying appellant's motion to dismiss. The trial court
concluded that (1) appellant failed to demonstrate that
Polivka became unavailable as a witness due to the delay in
prosecution, and (2) appellant failed to demonstrate that his
ability to defend against the charges was prejudiced as a
result of Polivka's unavailability. The trial court did
not address the issue of whether the delay in prosecution was
16} On July 3, 2018, appellant filed the instant appeal
challenging the trial court's judgment denying his motion
to dismiss. Appellant assigns one error for review:
I. The trial court erred, and thereby, violated
[appellant's] right to due process when it failed to
dismiss this case for prejudicial [preindictment] delay.
Law and Analysis
Final Appealable Order
17} As an initial matter, we must address whether the trial
court's judgment denying appellant's motion to
dismiss is a final appealable order such that this court has
jurisdiction to consider the merits of the appeal. This court
issued a sua sponte order on April 22, 2019, directing the
parties to brief the final appealable order issue, based on
the general rule that a trial court's denial of a