[Cite as State v. Jenkins, 2019-Ohio-2737.]

                               COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA

STATE OF OHIO,                                      :

                 Plaintiff-Appellant,               :
                                                                No. 107518
                 v.                                 :

MICHAEL J. JENKINS,                                 :

                 Defendant-Appellee.                :


                                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-B


                                              Appearances:

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

                 Mark A. Stanton, Chief Public Defender, and Erika B.
                 Cunliffe, Assistant Public Defender, for appellee.


ANITA LASTER MAYS, J.:

                   Plaintiff-appellant, the state of Ohio, appeals the trial court’s denial

of the state’s motion to reinstate the conviction of the defendant-appellee, Michael J.

Jenkins (“Jenkins”). Upon a review of the record, we find that the trial court’s denial
to reinstate the conviction is not a final appealable order, and accordingly, we have

no jurisdiction to determine this appeal.

I.    Facts and Procedural History

                On May 15, 2014, Jenkins, along with his codefendant, Oscar S.

Dickerson (“Dickerson”) were indicted on five counts relating to a sexual assault that

occurred on July 2, 1994. Both were charged with two counts of rape, two counts of

complicity, and one count of kidnapping. Jenkins was found guilty and sentenced

to eight years in prison. The state appealed the sentence, and Dickinson filed a

cross-appeal.

      This court ordered his conviction vacated. State v. Dickerson, 2016-
      Ohio-807, 60 N.E.3d 699 (8th Dist.) (“Dickerson I”). The Ohio
      Supreme Court remanded that case for application of State v. Jones,
      148 Ohio St.3d 167, 2016-Ohio-5105, 69 N.E.3d 688. On remand, this
      court reached the same conclusion and vacated Dickerson’s
      conviction, finding that his counsel was ineffective for failing to timely
      file a motion to dismiss based on preindictment delay. State v.
      Dickerson, 2017-Ohio-177 (“Dickerson II”). The state appealed that
      decision, and the Ohio Supreme Court declined to accept the case for
      review on October 11, 2017.

State v. Jenkins, 2018-Ohio-483, 106 N.E.3d 216, ¶ 2 (8th Dist.) (“Jenkins I”).

                Jenkins filed an identical appeal in Jenkins I. This court held that

“Jenkins’s trial counsel was ineffective for failing to file a timely motion to dismiss

based on preindictment delay * * *,” and reversed his convictions. Id. at ¶ 45. On

remand, the trial court held a hearing on the issue of the preindictment delay and

found that Jenkins did not suffer prejudice due to the delay. The state then filed a

motion with the trial court to reinstate Jenkins’s convictions. The trial court denied
the motion to reinstate the conviction on July 6, 2018. The state sought leave to

appeal the denial of their motion, and this court granted leave. Jenkins1 and

Dickerson,2 simultaneously filed appeals on the trial court’s denial of their

preindictment delay motions. Those appeals are pending before this same panel.

The state also filed an identical appeal to this one in regards to Dickerson.3 The state

assigns one error for our review:

         I.     The trial court erred in denying the state’s motion to reinstate
                convictions because such an order granted the defendant a new
                trial where no error justifies a new trial and the taint of the
                remand has been neutralized.

II.      Final Appealable Order

         A.     Whether this Court has Authority to Review the Trial
                Court’s Decision to Deny Reinstatement of
                Convictions

                 The state contends that the trial court’s denial of its motion to

reinstate Jenkins’s convictions is a final appealable order.

         The requirement of a final, appealable order is equally important in
         both civil and criminal cases. “An appellate court can review only final
         orders, and without a final order, an appellate court has no
         jurisdiction.” Supportive Solutions, L.L.C. v. Electronic Classroom of
         Tomorrow, 137 Ohio St.3d 23, 2013-Ohio-2410, 997 N.E.2d 490, ¶ 10.

State v. Anderson, 138 Ohio St.3d 264, 2014-Ohio-542, 6 N.E.3d 23, ¶ 28.




1   State v. Jenkins, 8th Dist. Cuyahoga No. 107409, currently on appeal.
2   State v. Dickerson, 8th Dist. Cuyahoga No. 107419, currently on appeal.
3   State v. Dickerson, 8th Dist. Cuyahoga No. 107520, currently on appeal.
               The state argues that because the trial court denied its motion to

reinstate Jenkins’s conviction, it effectively grants Jenkins a new trial, which is a

final appealable order.

       As a general rule, the state may not file an appeal except as provided
       by R.C. 2945.67. State ex rel. Leis v. Kraft, 10 Ohio St.3d 34, 460
       N.E.2d 1372 (1984). Pursuant to R.C. 2945.67(A), the state has a right
       to appeal only when the court grants a motion: 1) to dismiss counts in
       an indictment; 2) to suppress evidence; 3) to return property; or 4) for
       postconviction relief. Additionally, the state “may appeal by leave
       of * * * court * * * any other decision, except the final verdict * * *.”
       Id. See also App.R. 5(C) (outlining the procedure the state must
       follow when requesting leave to appeal).

State v. Colon, 8th Dist. Cuyahoga No. 103150, 2016-Ohio-707, ¶ 8.

               In addition,

       [a]nother interlocutory order that may become final and appealable
       upon ruling is an order that grants a new trial. R.C. 2505.02(B)(3).
       In State v. Matthews, 81 Ohio St.3d 375, 380, 691 N.E.2d 1041 (1998),
       the Ohio Supreme Court held as follows: “We are now clarifying that
       under R.C. 2505.02 and 2505.03(A), a trial court’s order granting a
       defendant a new trial in a criminal case is a final appealable order
       which the state may appeal by leave of court.” The Matthews court
       also explained that “we have already implicitly held that R.C. 2505.02
       applies to all appeals, civil and criminal.” Id. at 377.

Id. at ¶ 13.

               It is important to note that the trial court, in its July 6, 2018 journal

entry, did not grant Jenkins a new trial, and there is not an order from the trial court

that grants Jenkins a new trial. Therefore, the state incorrectly argues that the

denial of the motion automatically grants Jenkins a new trial. The state could elect

to not try Jenkins again.
              We cannot review the state’s claim of error, even if the state’s

argument has merit regarding an automatic retrial, because we do not have the trial

court’s reasoning for granting a retrial. “The basis for the new trial must be

specifically stated in order to allow a reviewing court to determine whether the trial

court abused its discretion in ordering a new trial. Antal v. Olde Worlde Prod., Inc.,

9 Ohio St.3d 144, 459 N.E.2d 223, syllabus (1984).” 425 Partnership v. Weston, 8th

Dist. Cuyahoga Nos. 68386 and 68498, 1996 Ohio App. LEXIS 844 (Mar. 7, 1996).

See Chaney v. Chaney, 8th Dist. Cuyahoga Nos. 70679 and 70653, 1998 Ohio App.

LEXIS 1063 (Mar. 19, 1998) (“The basis for granting a new trial must be specifically

stated in order to allow a reviewing court to determine whether the trial court

erred * * *.”). Without an order from the trial court expressly granting Jenkins a

new trial and its reasoning for doing so, this court cannot review the state’s

assignment of error because there is not a final appealable order.

              For the foregoing reasons, it is our determination that the trial court’s

denial of the state’s motion to reinstate Jenkins’s convictions does not satisfy the

requirements of a final order under R.C. 2505.02(B)(3), which states,

      [a]n appellate court’s jurisdiction is limited to reviewing, affirming,
      modifying or reversing judgments or final orders. Section 3(B)(2),
      Article IV, Ohio Constitution. See also R.C. 2505.03. R.C. 2505.02
      sets forth what is meant by a final appealable order and provides in
      relevant part:

      “(B) An order is a final order that may be reviewed, affirmed,
      modified, or reversed, with or without retrial, when it is one of the
      following: * * * (3) An order that vacates or sets aside a judgment or
      grants a new trial. This appeal is dismissed for lack of a final
      appealable order.”
State v. Patchin, 6th Dist. Lucas No. L-00-1103, 2000 Ohio App. LEXIS 4972

(Oct. 27, 2000).

              Accordingly, the appeal is dismissed.

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

      A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.



________________________________
ANITA LASTER MAYS, JUDGE

EILEEN T. GALLAGHER, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
