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. Jenkins

Court of Appeals of Ohio, Eighth District, Cuyahoga

July 3, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
MICHAEL J. JENKINS, Defendant-Appellant.

          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, for appellee.

          Mark A Stanton, Cuyahoga County Public Defender, and Erika B. Cunliffe, Assistant Public Defender, for appellant.

          JOURNAL ENTRY AND OPINION

          FRANK 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.

         I. 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, [1] 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.[2] 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 appellant's sentence.

         {¶ 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 N.E.3d 1203.

         {¶ 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 not justified.

         {¶ 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 justified.

         {¶ 16} On July 3, 2018, appellant filed the instant appeal challenging the trial court's judgment denying his motion to dismiss.[3] 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.

         II. Law and Analysis

         A. 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 ...


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.