State v. Dickerson

[Cite as State v. Dickerson, 2019-Ohio-2736.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :
No. 107419
v. :

OSCAR S. DICKERSON, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: DISMISSED
RELEASED AND JOURNALIZED: July 3, 2019

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

Appearances:

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

Russell S. Bensing, for appellant.

EILEEN T. GALLAGHER, P.J.:

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.

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

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.

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.

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.

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.

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.

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.
 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.

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.

Cuyahoga No. 102461, 2017-Ohio-177, ¶ 49 (“Dickerson II”). This court stated, in

relevant part:

After consideration of this case, we find that Dickerson had a
reasonable probability of success in demonstrating actual and
substantial prejudice. The circumstances of this case are similar to the
circumstances in [State v.] Luck, [15 Ohio St.3d 150, 427 N.E.2d 1097
(1984)] in that the defendants and the deceased witnesses were
together here for, at least part of, the alleged crimes. Polivka was a key
witness — he was with the victim for a number of hours during the
course of alleged crimes and the victim herself was unable to account
for that time. Thus, under the particular circumstances of this case, we
find that Dickerson had a reasonable probability of success in
demonstrating actual and substantial prejudice, the first prong of a
claim of preindictment delay.
Further, under the second part of the preindictment delay test, we find
that Dickerson would have had a reasonable probability of success on
his motion given the state’s reason for the delay.
Id. at ¶ 59-60. Having found that defense counsel rendered ineffective assistance of

counsel, this court “reversed” Dickerson’s convictions. Id. at ¶ 64. The state filed an

appeal challenging the decision in Dickerson II. However, the Ohio Supreme Court

declined to accept the state’s appeal for review on October 11, 2017.

On remand to the trial court, Dickerson filed a motion to dismiss the

indictment based on “the law of the case.” He maintained that further proceedings

were unnecessary in light of this court’s decision in Dickerson II, and our “legal

conclusion that Dickerson had been prejudiced by the preindictment delay, and that

the delay had been unjustifiable.” The state opposed the motion to dismiss, arguing

the trial court was obligated to hear and decide Dickerson’s motion to dismiss for

preindictment delay.

In November 2017, the trial court denied Dickerson’s motion to

dismiss based on the law of the case, stating in relevant part:

The appellate court’s mandate is its instruction to the lower court on
how to proceed in light of the decision on the appeal. The mandate here
is simply to “carry this judgment [reversing Dickerson’s conviction]
into execution.” Since the mandate is silent on what to do other than
vacate the conviction, the appellate court’s intent can only be discerned
from the rest of the opinion. As already pointed out above, the
appellate decision makes clear the court’s assessment that Dickerson
had a “viable” claim for prejudicial preindictment delay based on the
“strong probability” that he can demonstrate the two elements
necessary for the claim. But nowhere does the appellate court either
declare that the motion is meritorious or direct [the trial court] to grant
the motion to dismiss the indictment.

***

[F]inding a reasonable probability that the motion would have been
granted is not the same as finding that it should have been granted. The
 court of appeals concluded that Dickerson was denied constitutional
due process by virtue of counsel’s deficient performance. But the court
of appeals did not find error in denying the motion.

Thereafter, Dickerson filed a motion to dismiss for preindictment

delay in December 2017. In the motion, Dickerson reiterated his position that the

delayed prosecution violated his right to due process of law. Following an

evidentiary hearing, the trial court issued a judgment entry in June 2018, denying

Dickerson’s motion to dismiss for preindictment delay. The trial court found

Dickerson failed to establish actual prejudice, stating, in relevant part:

Here, the only way to conclude that Dickerson and Jenkins are
prejudiced without Polivka being available as a witness is to make
several assumptions, not all of which are plausible and, more
importantly, none of which are grounded in reasonable inferences
known from the evidence.

***

Ultimately, the defendant’s rely only on the fact that Polivka is now
dead to support their claim of prejudice. Yet the death of a potential
witness during the preindictment period can constitute prejudice, but
only if the defendant can identify exculpatory evidence that was lost
and shows that the exculpatory evidence could not be obtained by other
means. State v. Adams, 144 Ohio St.3d 429, 445 (2015). Dickerson
and Jenkins have utterly failed to identify the substance of the alleged
lost testimony.

Based on the trial court’s denial of Dickerson’s motion to dismiss, the

state immediately filed a motion to reinstate Dickerson’s convictions. The state

argued that “now that the trial court has denied the motion [to dismiss], the spirit

of the law requires [the] court to reinstate the convictions.” The state suggested that
to hold otherwise would grant Dickerson “the windfall of a new trial.” In July 2018,

the trial court denied the motion to reinstate Dickerson’s convictions.

Dickerson now appeals from the trial court’s judgment denying his

motion to dismiss for preindictment delay.

II. Law and Analysis

In his sole assignment of error, Dickerson argues the trial court erred

in denying his motion to dismiss for preindictment delay. However, this court lacks

subject matter jurisdiction to consider Dickerson’s appeal in the absence of a final,

appealable order. CitiMortgage, Inc. v. Roznowski, 139 Ohio St.3d 299, 2014-Ohio-

1984, 11 N.E.3d 1140, ¶ 10. Therefore, before addressing the substantive merits of

Dickerson’s appeal, we must determine whether the denial of a motion to dismiss

for preindictment delay is a final, appealable order. Sua sponte, this court ordered

the parties to brief the issue in light of the trial court’s judgment denying the state’s

request to reinstate Dickerson’s convictions.

The Ohio Constitution limits appellate jurisdiction to the review of

final judgments of lower courts. Ohio Constitution, Article IV, Section 3(B)(2). To

qualify as a final, appealable order under R.C. 2505.02(B)(4), the journal entry being

appealed must satisfy three statutory requirements (1) the order must grant or deny

a “provisional remedy,” as that term is defined in the statute, (2) the order must in

effect determine the action with respect to the provisional remedy, and (3) the

appealing party would not be afforded a meaningful review of the decision if that
party had to wait for final judgment as to all proceedings in the action. State v.

Anderson, 138 Ohio St.3d 264, 2014-Ohio-542, 6 N.E.3d 23, ¶ 43.

Relevant to the circumstances presented in Dickerson’s appeal, this

court has previously stated as follows:

It is well established that the common pleas court’s denial of a motion
to dismiss an indictment is an interlocutory order that is not
immediately appealable. See State v. Crawley, 96 Ohio App.3d 149,
155-156, 644 N.E.2d 724 (12th Dist.1994); State v. Hawkins, 30 Ohio
App.3d 259, 507 N.E.2d 425 (8th Dist.1986); State v. Loshin, 34 Ohio
App.3d 62, 68, 517 N.E.2d 229 (1st Dist.1986); State v. Eberhardt, 56
Ohio App.2d 193, 381 N.E.2d 1357 (8th Dist.1978) (denial of
defendant’s motion to dismiss the indictment was not a final order until
the trial court issued nolle prosequi, thereby “commit[ting] the
appellant to the uncertainty of possible reindictment and trial.”).

State v. Mitchell, 8th Dist. Cuyahoga No. 104314, 2017-Ohio-94, ¶ 10.

In Eberhardt, this court explained:

Generally speaking, the overruling of a motion to dismiss in a criminal
or a civil case is not considered a final appealable order. State v. Lile
(1974), 42 Ohio App.2d 89, 330 N.E.2d 452 * * *. Ordinarily, after a
motion to dismiss is overruled, the case will proceed to trial and in the
event of judgment adverse to the moving party, the trial court’s action
overruling the motion may become one of the assignments of error on
appeal. * * *.

The foregoing is consistent with the general rule in Ohio that there
should be one trial and one appeal.

Id. at 198. See also Lakewood v. Pfeifer, 83 Ohio App.3d 47, 50, 613 N.E.2d 1079

(8th Dist.1992). Nevertheless, “[t]here are unusual instances when orders which

standing alone are not considered final appealable orders become appealable by

virtue of the exceptional circumstances under which they are rendered.” Id.
 In its supplemental brief, the state argues that “Dickerson’s appeal is

premature” and “should be dismissed for lack of a final, appealable order.” The state

contends that even if the trial court denied Dickerson a provisional remedy, he will

be afforded a meaningful and effective remedy following a final judgment.

In contrast, Dickerson argues the trial court’s denial of his motion to

dismiss for preindictment delay is a final, appealable order because the motion

determined the action with respect to a “provisional remedy,” and he will not be

afforded a meaningful and effective remedy if it must wait until the final judgment

to bring his appeal. In support of his contention that he would not be afforded a

meaningful review absent an interlocutory appeal, Dickerson asks this court to

consider (1) the constitutional rights involved in his motion to dismiss, (2)

principles of fundamental fairness, (3) the conservation of judicial resources, and

(4) the likelihood of Dickerson prevailing in this appeal. His argument relies on the

Ohio Supreme Court’s decisions in State v. Chambliss, 128 Ohio St.3d 507, 2011-

Ohio-1785, 947 N.E.2d 651, and State v. Anderson, 138 Ohio St.3d 264, 2014-Ohio-

542, 6 N.E.3d 23, and this court’s decision in State v. Anderson, 8th Dist. Cuyahoga

No. 106304, 2018-Ohio-3051.

In Chambliss, the Supreme Court stated that “[a] pretrial ruling

removing a criminal defendant’s retained counsel of choice is a final order subject

to immediate appeal.” In reaching this conclusion, the Supreme Court’s analysis

focused on whether an immediate appeal was the only means to ensure the

defendant an effective remedy. Id. at ¶ 16. In its examination of this issue, the court
noted that because different attorneys will often pursue different legal strategies

regarding many aspects of a criminal case, it will be difficult to determine at the end

of the action whether the erroneous disqualification of counsel was prejudicial. Id.

at ¶ 18-20. As a result, an erroneous disqualification is considered a structural error

that entitles the criminal defendant to an automatic reversal of his conviction. Id.

For this reason, the Chambliss court ultimately held that a pretrial disqualification

order must be immediately appealable because it is the only way to ensure a

meaningful appellate remedy. Id. at ¶ 22.

In Anderson, 138 Ohio St.3d 264, 2014-Ohio-542, 6 N.E.3d 23, the

Ohio Supreme Court held that an order denying a motion to dismiss on double-

jeopardy grounds is a final order under R.C. 2505.02(B)(4) as a provisional remedy.

Id. at ¶ 49. The court explained that it had “little trouble concluding that a motion

to dismiss on double-jeopardy grounds is an ancillary proceeding,” because a

motion to dismiss an indictment on grounds of double jeopardy is “‘separate from

and entirely collateral to the substantive issues at trial.’” Id. at ¶ 48-50, quoting

Sellers, Between a Rock and a Hard Place: Does Ohio Revised Code Section 2505.02

Adequately Safeguard a Person’s Right Not to Be Tried?, 28 Ohio N.U.L. Rev. 285,

299 (2002). The court also found that “a decision on a motion to dismiss on double-

jeopardy grounds determines the action because it permits or bars the subsequent

prosecution.” Id. at ¶ 52. Finally, noting that double jeopardy barred a second trial

for the same offense, the Supreme Court held that absent an interlocutory appeal, a

party seeking dismissal of an indictment on double-jeopardy grounds would not be
afforded a meaningful review of the decision if forced to go to trial before being able

to appeal. Id. at ¶ 59.

In Anderson, 8th Dist. Cuyahoga No. 106304, 2018-Ohio-3051, the

defendant-appellant shot his girlfriend in 1996, leaving her in a “persistent

vegetative state.” Id. at ¶ 1. The defendant pled guilty to attempted murder in

November 1996. Subsequently, in 1998, the victim died as a result of the injuries

she sustained from the shooting. Nineteen years later, in March 2017, the state

charged the defendant with murder. The defendant filed a motion to dismiss the

2017 indictment, arguing that “the state did not expressly reserve the right to file

additional charges on the record at the time of his [1996] guilty plea.” Id. The trial

court denied the defendant’s motion to dismiss, concluding that “the state did not

anticipate the 1996 plea would terminate the entire incident.” Id.

On appeal, this court held that although the case did not involve

double jeopardy protections, “the [Ohio Supreme Court’s] Anderson decision

applies by implication.” Id. at ¶ 7. Regarding the third prong of the R.C. 2505.02(B)

final order analysis, this court explained that absent an interlocutory appeal, the

defendant would not be afforded a meaningful remedy. This determination relied

on the Ohio Supreme Court’s unambiguous holding that:

“the state cannot indict a defendant for murder after the court has
accepted a negotiated guilty plea to a lesser offense and the victim later
dies of injuries sustained in the crime, unless the state expressly
reserves the right to file additional charges on the record at the time of
the defendant’s plea.”

Id. at ¶ 8, quoting State v. Carpenter, 68 Ohio St.3d 59, 62, 623 N.E.2d 66 (1993).
 In denying the state’s motion to dismiss the appeal for lack of a final

order, this court concluded that “[d]enying Anderson the right to an immediate

appeal from the denial of his motion to dismiss the indictment and forcing him to

stand trial for murder would deprive him of the reasonable expectation that his

guilty plea terminated the proceedings against him in this case.” Anderson, 8th Dist.

Cuyahoga No. 106304, 2018-Ohio-3051, at ¶ 8. Guided by the Ohio Supreme Court’s

holding in Carpenter, this court emphasized that the only thing that could have

changed the defendant’s expectation of finality in the 1996 guilty plea was the state’s

express reservation of its right to file additional charges. Id. at ¶ 9-11.

After careful consideration, we decline to extend the foregoing

precedent to the circumstances of this case. In Anderson, the Ohio Supreme Court

developed a narrowly tailored exception that applies only to motions to dismiss on

double jeopardy grounds. Similarly, Chambliss is narrowly tailored to a pretrial

ruling disqualifying a criminal defendant’s retained counsel of choice. And finally,

this court’s decision in Anderson was premised on clear error in the trial court’s

failure to apply “an unambiguous legal proposition” of the Ohio Supreme Court.

Anderson at ¶ 11. In this case, Dickerson’s motion to dismiss is not related to double

jeopardy grounds or the disqualification of chosen counsel. Moreover, unlike the

circumstances presented to this court in Anderson, the trial court’s denial of

Dickerson’s preindictment delay motion is not in direct conflict with objective,

unambiguous precedent of the Ohio Supreme Court.
 While Dickerson presumes that our prior decisions in Dickerson I and

Dickerson II illustrate the likelihood of his success in this appeal, we note that our

decision was limited to a review of an ineffective assistance of counsel claim.

Unquestionably, an ineffective assistance of counsel claim incorporates a different

standard of review than that applied to appellate review of a denial of the motion to

dismiss for preindictment delay. Accordingly, we find no sufficient basis to diverge

from the well-established principle that the common pleas court’s denial of a motion

to dismiss an indictment is an interlocutory order that is not immediately

appealable.

If Dickerson is convicted, he can appeal the denial of his motion to

dismiss, and the preindictment delay issue can be fully addressed by this court at

that time. Under these circumstances, we are unable to conclude that Dickerson will

be deprived of a meaningful or effective remedy if he must wait to challenge the trial

court’s decision until after final judgment. The trial court’s denial of Dickerson’s

motion to dismiss for preindictment delay is not a final, appealable order under R.C.

2505.02(B).

Appeal dismissed.

It is ordered that appellee recover of appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.
 A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

EILEEN T. GALLAGHER, PRESIDING JUDGE

ANITA LASTER MAYS, J., and
FRANK D. CELEBREZZE, JR., J., CONCUR