Court of Appeals of Ohio, Eighth District, Cuyahoga
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,
Russell S. Bensing, for appellant.
JOURNAL ENTRY AND OPINION
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.
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
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
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
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. ...