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State v. Dickerson

Court of Appeals of Ohio, Eighth District, Cuyahoga

July 3, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
OSCAR S. DICKERSON, Defendant-Appellant.

          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-14-585521-A

          Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Daniel T. Van, Assistant Prosecuting Attorney, for appellee.

          Russell S. Bensing, for appellant.

          JOURNAL ENTRY AND OPINION

          EILEEN T. GALLAGHER, PRESIDING JUDGE.

         {¶ 1} Defendant-appellant, Oscar S. Dickerson, appeals from the trial court's denial of his motion to dismiss for preindictment delay. He raises the following assignment of error for review:

The trial court erred in denying the motion to dismiss the indictment for preindictment delay, in derogation of defendant's right to due process of law, as protected by the Fourteenth Amendment to the United States Constitution.

         {¶ 2} After careful review of the record and relevant case law, we dismiss the appeal for lack of a final, appealable order.

         I. Procedural and Factual History

         {¶ 3} In May 2014, Dickerson and his codefendant, Michael J. Jenkins, were named in a five-count indictment, charging them each with rape in violation of R.C. 2907.02(A)(2), to wit: fellatio; rape in violation of R.C. 2907.02(A)(2), to wit: vaginal intercourse; kidnapping in violation of R.C. 2905.01(A)(4); and two counts of complicity in violation of R.C. 2923.03(A)(2). The indictment stemmed from allegations that Dickerson and Jenkins raped the then 16-year-old victim, J.R., in July 1994.

         {¶ 4} In November 2014, Dickerson filed a motion to dismiss for preindictment delay, arguing that he was substantially prejudiced by the unreasonable delay in the commencement of the prosecution because a key witness, Jerry Polivka, was now deceased. The trial court denied the motion to dismiss as untimely.

         {¶ 5} During a jury trial, the state presented evidence that on July 2, 1994, the victim was walking home when she was approached by Dickerson, Jenkins, and Polivka. The men were inside a vehicle and offered J.R. a ride home, which she declined. However, when one of the men persisted, J.R. got into the car. She testified that she accepted the ride because she was scared. Polivka, who was driving the vehicle, then drove to a nearby hotel, where it is alleged that Dickerson and Jenkins raped J.R. Polivka rented the hotel room in his name; however, he was not alleged to have been inside the hotel room during the incident.

         {¶ 6} At the conclusion of trial, the jury convicted Dickerson of one count each of rape, complicity, and kidnapping. The trial court sentenced Dickerson to an aggregate five-year prison sentence.

         {¶ 7} The state appealed, arguing the trial court erred by ordering a definite term of incarceration under the present sentencing regime because Dickerson would have been subject to an indefinite sentence under the sentencing regime as it existed at the time he committed the offenses. Dickerson cross-appealed, arguing the trial court erred in denying his motion to dismiss for preindictment delay. Alternatively, Dickerson argued that trial counsel rendered ineffective assistance of counsel by failing to file the motion to dismiss in a timely manner.

         {¶ 8} On appeal, this court found the trial court did not abuse its discretion in denying the motion to dismiss as untimely. State v. Dickerson, 8th Dist. Cuyahoga No. 102461, 2016-Ohio-807, ¶ 35 ("Dickerson I "). However, this court concluded that defense counsel rendered ineffective assistance of counsel by failing to file a timely motion to dismiss for preindictment delay, because "there was a reasonable probability that it would have been granted had it been timely filed." Id. at ¶ 51. Accordingly, the case was remanded "to the trial court to vacate appellant's conviction[s]." Id. at ¶ 54. The state's appeal was rendered moot.

         {¶ 9} Following the issuance of the Ohio Supreme Court's decision in State v. Jones, 148 Ohio St.3d 167, 2016-Ohio-5105, 69 N.E.3d 688, the state filed a motion for reconsideration, which the Ohio Supreme Court granted on August 31, 2016. State v. Dickerson, 146 Ohio St.3d 1493, 2016-Ohio-5585, 57 N.E.3d 1172. Accordingly, Dickerson I was vacated, and the cause was remanded to this court for application of Jones.

         {¶ 10} On remand, this court complied with the directive of the Ohio Supreme Court and applied the standard set forth in Jones to the circumstances of this case. Ultimately, this court reiterated its conclusion that "[defense] counsel was deficient for not timely raising the issue of preindictment delay and that there was a reasonable probability of success had it been made." State v. Dickerson, 8th Dist. ...


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