[Cite as State v. Anderson, 2012-Ohio-4390.]
                           STATE OF OHIO, MAHONING COUNTY

                                  IN THE COURT OF APPEALS

                                       SEVENTH DISTRICT

STATE OF OHIO,                                  )
                                                )
        PLAINTIFF-APPELLEE,                     )          CASE NO. 11-MA-43
                                                )
V.                                              )          OPINIONS UPON
                                                )             EN BANC
CHRISTOPHER L. ANDERSON,                        )          CONSIDERATION
                                                )
        DEFENDANT-APPELLANT.                    )

CHARACTER OF PROCEEDINGS:                       Criminal Appeal from Court of Common
                                                Pleas of Mahoning County, Ohio
                                                Case No. 02CR854

                                                In that a majority of the judges are
                                                unable to concur, the decision of the
                                                original panel shall remain. App.R.
                                                26(A)(2)(d)

APPEARANCES:
For Plaintiff-Appellee                          Paul Gains
                                                Prosecutor
                                                Ralph Rivera
                                                Assistant Prosecutor
                                                21 West Boardman St., 6th Floor
                                                Youngstown, Ohio 44503

For Defendant-Appellant                         Attorney John Juhasz
                                                7081 West Boulevard, Suite 4
                                                Youngstown, Ohio 44512-4362

JUDGES:

Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite
Hon. Mary DeGenaro


                                                Dated: September 25, 2012
[Cite as State v. Anderson, 2012-Ohio-4390.]
DONOFRIO, J.

        {¶1}     Defendant-appellant, Christopher Anderson, appeals from a Mahoning
County Common Pleas Court judgment denying his Motion to Dismiss Indictment and
for Discharge from the scheduled trial. Plaintiff-appellee, the State of Ohio, filed a
motion to dismiss this appeal alleging that the trial court’s denial of appellant’s motion
for discharge is not a final, appealable order. This court overruled the state’s motion,
finding that in this particular situation where there have been multiple mistrials, the
order appealed is a final, appealable order as defined by R.C. 2505.02. The state
next requested that we sit en banc to hear the finality issue, arguing that our decision
was in conflict with one of our prior decisions. We granted the state’s request and
held an en banc hearing to determine whether the denial of appellant’s motion for
discharge was immediately appealable.
        {¶2}     We now proceed with a determination solely as to the appealability of
the trial court’s judgment overruling appellant’s motion to dismiss/discharge.
        {¶3}     Appellant has had five trials thus far.
        {¶4}     During the first trial, the trial court excluded certain other acts evidence,
which was then brought up by a state’s witness. The trial court declared a mistrial
finding that no corrective instruction to the jury could overcome the weight of the
improper comment by the state’s witness.
        {¶5}     During the second trial, the court allowed the other acts evidence and
also allowed evidence of appellant’s probation violations.          A jury found appellant
guilty in November 2003.            On appeal, this court reversed the murder conviction
finding that the trial court erred in admitting this evidence. State v. Anderson, 7th
Dist. No. 03-MA-252, 2006-Ohio-4618.
        {¶6}     Appellant’s third trial was held in December 2008. This trial resulted in
a hung jury.
        {¶7}     Appellant’s fourth trial began in April 2010.        However, one of his
defense attorneys fell asleep during voir dire. Consequently, the court declared a
mistrial.
                                                                               -2-


       {¶8}    Appellant’s fifth trial was held in August 2010. For the second time, the
trial resulted in a hung jury.
       {¶9}    The trial court scheduled appellant for what would be his sixth trial.
Appellant then filed his Motion to Dismiss Indictment and for Discharge. Appellant
argued that to make him stand trial for a sixth time violated his due process rights
and his protection from double jeopardy. The trial court overruled appellant’s motion
finding that double jeopardy does not bar a retrial for the same offense after reversal
or mistrial. Appellant filed a timely appeal from this decision.
       {¶10} The state now alleges our decision that the order appealed from is a
final, appealable order is in conflict with the Ohio Supreme Court case State v.
Crago, 53 Ohio St.3d 243, 559 N.E.2d 1352 (1990) and our application of Crago’s
holding in State v. Hubbard, 135 Ohio App.3d 518, 734 N.E.2d 874 (7th Dist. 1999).
       {¶11} In Crago, 53 Ohio St.3d at the syllabus, the Court held: “The overruling
of a motion to dismiss on the ground of double jeopardy is not a final appealable
order.” In so holding, the court reasoned: “The denial of a motion to dismiss a
charge on the basis of double jeopardy does not meet, for purposes of being a final
order, any one of the three prongs of R.C. 2505.02 as set forth therein.” Id. at 244.
       {¶12} In Hubbard, we relied on Crago in holding that the overruling of a
motion to dismiss on the grounds of double jeopardy is not an appealable order
subject to immediate review. Hubbard, 135 Ohio App.3d at 522.
       {¶13} The present case is distinguishable from Crago and Hubbard. Both
Crago and Hubbard dealt solely with the issue of double jeopardy and did not
address a due process argument.           Appellant, however, based his motion to
dismiss/discharge on two separate arguments: (1) a violation of double jeopardy
because of the harassment associated with multiple prosecutions; and (2) a violation
of due process because the trial process was no longer fair.
       {¶14} Furthermore, the facts here are distinguishable. In Crago and Hubbard,
the defendants each had one trial which resulted in a mistrial. Before their second
trials, they each filed a motion to dismiss based on double jeopardy. In the present
                                                                                -3-


case however, appellant has had two trials that resulted in hung juries, one trial
ending in a conviction that we reversed on appeal, one mistrial chargeable to the
state, and one mistrial chargeable to the defense.
         {¶15} Had appellant raised only a double jeopardy argument in support of his
motion to dismiss/discharge and had he been subject to only one trial thus far, we
would agree that Crago and Hubbard control here.            But appellant’s due process
argument coupled with the unique facts of this case compel us to reach a different
conclusion.
         {¶16} R.C. 2505.02(B) defines a final, appealable order:
         {¶17} “(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:
         {¶18} “(1) An order that affects a substantial right in an action that in effect
determines the action and prevents a judgment;
         {¶19} “(2) An order that affects a substantial right made in a special
proceeding or upon a summary application in an action after judgment;
         {¶20} “(3) An order that vacates or sets aside a judgment or grants a new
trial;
         {¶21} “(4) An order that grants or denies a provisional remedy and to which
both of the following apply:
         {¶22} “(a) The order in effect determines the action with respect to the
provisional remedy and prevents a judgment in the action in favor of the appealing
party with respect to the provisional remedy.
         {¶23} “(b) The appealing party would not be afforded a meaningful or effective
remedy by an appeal following final judgment as to all proceedings, issues, claims,
and parties in the action.”
         {¶24} R.C. 2505.02(A)(3) defines a “provisional remedy” as a “proceeding
ancillary to an action, including, but not limited to, a proceeding for a preliminary
injunction, attachment, discovery of privileged matter, or suppression of evidence.”
                                                                                  -4-


(Emphasis added.) An order denying a motion to dismiss/discharge would fall into
the category of provisional remedies.
       {¶25} Furthermore, in this case, appellant would clearly be denied a
meaningful, effective appeal on the issue of due process if he is required to wait until
conviction before appealing. And if appellant is denied an appeal now, he will be
prevented from obtaining a judgment in his favor with respect to his motion to
dismiss/discharge. Unlike other appealable issues that arise prior to trial and during
trial, such as evidentiary rulings, the violation here occurs if appellant is required to
stand trial. The trial itself is the very thing appellant claims that due process prohibits
in this case.
       {¶26} The Due Process Clause of the United States Constitution provides:
“No State shall make or enforce any law which shall abridge the privileges and
immunities of citizens of the United States; nor shall any State deprive any person of
life, liberty, or property, without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.”
       {¶27} Article I, Section 16 of the Ohio Constitution, states that every person
“shall have remedy by due course of law and shall have justice administered without
denial or delay.” (Emphasis added.)
       {¶28} In this case, appellant has already been subject to preparing for five
trials over a seven-year period. Should he proceed to a sixth trial, his entire trial
process will have taken close to nine years. We believe that fundamental fairness
and constitutional protections provide appellant a right to appeal at this time the trial
court’s ruling on his motion to dismiss/discharge.
       {¶29} We note that our ruling herein applies strictly to the appealability issue
as we have not yet reached the merits of this case.
       {¶30} In that a majority of the judges of the appellate district are unable to
                                                                       -5-


concur in a decision, the decision of the original order shall remain. App.R.
26(A)(2)(d).
DeGenaro, J. concurs with attached concurring opinion.
Vukovich, J. writing separately representing two out of four votes upon en banc
review
Waite, P.J. concurs with Vukovich, J.
                                                                                 -6-


DeGenaro, J., concurring separately with the judgment of Judge Donofrio.
       {¶31} I add my voice to the call of colleagues from other appellate districts
and Justices Lanzinger and McGee-Brown in State v. Gunnell, Slip Opinion No.
2012-Ohio-3236, (July 19, 2012), for the Ohio Supreme Court to revisit State v.
Crago, 53 Ohio St.3d 243, 559 N.E.2d 1353 (1990), which held that the denial of a
motion to dismiss on double jeopardy grounds is not a final appealable order.
Subsequent to Crago, in Wenzel v. Enright, 68 Ohio St.3d 63, 623 N.E.2d 69 (1993),
the court held that such a denial is not subject to judicial review through a petition for
habeas corpus, prohibition, or any other original writ, thus the only remaining remedy
under Ohio law to vindicate this violation is a direct appeal after trial. Anderson
correctly argues that this not only violates the Double Jeopardy Clause but also the
Due Process Clause; both of which constitute a "substantial right" as contemplated
by R.C. 2505.02. That statute goes on to provide that where an order in effect
determines the action and prevents a judgment with respect to that substantial right,
it is a final order which may be appealed. R.C. 2505.02(B)(1). Here, the trial court's
denial of Anderson's motion to dismiss on double jeopardy and due process grounds
is a complete, final rejection of his claim that the state is barred from prosecuting him,
and therefore prevents a judgment in his favor to that effect.           Thus, we have
jurisdiction to consider this appeal.
       {¶32} I write separately because while I agree with my colleague finding
jurisdiction that Anderson's due process argument enables us to view this issue
through that particular lens, especially when considering that Anderson has been
incarcerated throughout the 10 years of legal proceedings, I do not think that the
finality of the instant order is necessarily dependent on the fact that Anderson is
facing his sixth trial. Instead, I believe it incumbent upon me as an officer of the court
to conclude that because Crago and Wenzel are contrary to the United States
Supreme Court's interpretation of the Double Jeopardy Clause, we must be guided
by that court's jurisprudence, and accordingly find the order at issue here final and
appealable.
                                                                                 -7-


       {¶33} The Double Jeopardy Clause not only protects individuals from double
punishment for the same or allied offenses, a right which can be vindicated by a post-
trial direct appeal, it also protects a predicate right which cannot be adequately
protected by direct appeal, i.e, being subjected to multiple trials.          "The Fifth
Amendment's Double Jeopardy Clause protects individuals 'not against being twice
punished, but against being twice put into jeopardy.'" Ball v. United States, 163 U.S.
662, 669, 16 S.Ct. 1192, 1194, 41 L.Ed. 300 (1896); see, also, Blueford v. Arkansas,
132 S.Ct. 2044, 2050, 182 L.Ed.2d 937 (2012) (The Double Jeopardy Clause
guarantees that the State shall not be permitted to make repeated attempts to convict
the accused). And looking to specific guarantees in the Bill of Rights to determine
whether a state criminal trial comported with due process, the Supreme Court held
that the Double Jeopardy Clause applies to the states via the Fourteenth Amendment
in Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707. The Court
reasoned that because the Fifth Amendment provision represented a fundamental
principle of the American scheme of justice, the same constitutional standards apply
against both state and federal governments. Id. at 795-796. And because Ohio has
opted to afford the right of a criminal appeal, that right must be meaningful. McKane
v. Durston, 153 U.S. 684, 14 S.Ct. 913, 38 L.Ed. 867 (1894). Thus, we are bound by
U.S. Supreme Court precedent in considering this issue.
       {¶34} In Abney v. U.S., 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977),
the Supreme Court explained why the denial of a motion to dismiss on double
jeopardy grounds is among a limited class of cases that are the exception to the
traditional notion of final appealable orders:
              * * * In the first place there can be no doubt that such orders
       constitute a complete, formal, and, in the trial court, final rejection of a
       criminal defendant's double jeopardy claim. There are simply no further
       steps that can be taken in the District Court to avoid the trial the
       defendant maintains is barred by the Fifth Amendment's guarantee.
       Hence, Cohen's threshold requirement of a fully consummated decision
                                                                           -8-


is satisfied.
       Moreover, the very nature of a double jeopardy claim is such that
it is collateral to, and separable from the principal issue at the
accused's impending criminal trial, i.e., whether or not the accused is
guilty of the offense charged. In arguing that the Double Jeopardy
Clause of the Fifth Amendment bars his prosecution, the defendant
makes no challenge whatsoever to the merits of the charge against
him. Nor does he seek suppression of evidence which the Government
plans to use in obtaining a conviction. * * * The elements of that claim
are completely independent of his guilt or innocence. Indeed, we
explicitly recognized that fact in Harris v. Washington, 404 U.S. 55, 92
S.Ct. 183, 30 L.Ed.2d 212 (1971), where we held that a State Supreme
Court's rejection of an accused's pretrial plea of former jeopardy
constituted a "final" order for purposes of our appellate jurisdiction
under 28 U.S.C. s 1257.
       "Since the state courts have finally rejected a claim that the
Constitution forbids a second trial of the petitioner, a claim separate and
apart from the question whether the petitioner may constitutionally be
convicted of the crimes with which he is charged, our jurisdiction is
properly invoked under 28 U.S.C. s 1257." [Harris], 404 U.S., at 56, 92
S.Ct., at 184. * * * Thus, the matters embraced in the trial court's pretrial
order here are truly collateral to the criminal prosecution itself in the
sense that they will not "affect, or . . . be affected by, decision of the
merits of this case." Cohen, 337 U.S., at 546, 69 S.Ct., at 1225.
       Finally, the rights conferred on a criminal accused by the
Double Jeopardy Clause would be significantly undermined if
appellate review of double jeopardy claims were postponed until
after conviction and sentence. To be sure, the Double Jeopardy
Clause protects an individual against being twice convicted for the
                                                                          -9-


same crime, and that aspect of the right can be fully vindicated on an
appeal following final judgment, as the Government suggests. However,
this Court has long recognized that the Double Jeopardy Clause
protects an individual against more than being subjected to
double punishments. It is a guarantee against being twice put to
trial for the same offense.
       " 'The Constitution of the United States, in the Fifth Amendment,
declares, " nor shall any person be subject (for the same offense) to be
twice put in jeopardy of life or limb." The prohibition is not against being
twice punished, but against being twice put in jeopardy . . . .' . . . The
'twice put in jeopardy' language of the Constitution thus relates to a
potential, i.e., the risk that an accused for a second time will be
convicted of the 'same offense' for which he was initially tried." Price v.
Georgia, 398 U.S. 323, 326, 90 S.Ct. 1757, 1759, 26 L.Ed.2d 300
(1970). * * * Because of this focus on the "risk" of conviction, the
guarantee against double jeopardy assures an individual that, among
other things, he will not be forced, with certain exceptions, to endure the
personal strain, public embarrassment, and expense of a criminal trial
more than once for the same offense. It thus protects interests wholly
unrelated to the propriety of any subsequent conviction. Mr. Justice
Black aptly described the purpose of the Clause:
       "The underlying idea, one that is deeply ingrained in at least
the Anglo-American system of jurisprudence, is that the State with
all its resources and power should not be allowed to make
repeated attempts to convict an individual for an alleged offense,
thereby subjecting him to embarrassment, expense and ordeal and
compelling him to live in a continuing state of anxiety and insecurity, as
well as enhancing the possibility that even though innocent he may be
found guilty." Green, supra, 355 U.S., at 187-188, 78 S.Ct. 221, 223.
                                                                            - 10 -


             * * * Obviously, these aspects of the guarantee's protections
      would be lost if the accused were forced to "run the gauntlet" a
      second time before an appeal could be taken; even if the accused
      is acquitted, or, if convicted, has his conviction ultimately
      reversed on double jeopardy grounds, he has still been forced to
      endure a trial that the Double Jeopardy Clause was designed to
      prohibit.     Consequently, if a criminal defendant is to avoid
      exposure to double jeopardy and thereby enjoy the full protection
      of the Clause, his double jeopardy challenge to the indictment
      must be reviewable before that subsequent exposure occurs.
             We therefore hold that pretrial orders rejecting claims of former
      jeopardy, such as that presently before us, constitute "final decisions"
      and thus satisfy the jurisdictional prerequisites of s 1291. (Footnotes
      and some internal citations omitted; emphasis added). Abney, 431 U.S.
      at 659-662.

      {¶35} I disagree with my colleagues opposing jurisdiction that Abney is
distinguishable because it is discussing the federal appeals jurisdictional statute.
Because Ohio has opted to afford criminal defendants an appeal, Benton and
McKane dictate that an appeal must be meaningful, specifically that it comport with
due process.      And whether the appeal process comports with due process is
measured by the same standard which must be met by the federal government:
Abney and its precursors and progeny.
      {¶36} Turning next to the evolution of Ohio Supreme Court double jeopardy
jurisprudence, it is necessary to place it in context. In Owens v. Campbell, 27 Ohio
St.2d 264, 272 N.E.2d 116 (1971), a 4-3 decision and no dissenting opinion, the
majority merely held, without any analysis, that a defendant's remedy for a double
jeopardy violation was not a direct appeal, but an extraordinary writ. Id. at 268.
Although Owens had filed a habeas petition, the court never specified which writ was
                                                                                - 11 -


the appropriate one to file. This ambiguity led to some courts approving the use of a
writ of prohibition as the vehicle to address a pre-trial double jeopardy claim, but this
was subsequently rejected in State ex. rel. Wall v. Grossman, 61 Ohio St.2d 4, 398
N.E.2d 789 (1980).
       {¶37} The issue was then resolved by a unanimous court in State v. Thomas,
61 Ohio St.2d 254, 400 N.E.2d 897 (1980):

              Section 3(B)(2), Article IV, of the Ohio Constitution, authorizes
       appellate courts to exercise such jurisdiction as may be provided by
       law to review "judgments or final orders" of inferior courts within their
       respective districts. To implement this constitutional provision, the
       General Assembly enacted R.C. 2953.02, which provides for review by
       the Court of Appeals of a "judgment or final order" in a criminal case.
       Although the term "final order" is not defined in R.C. 2953.02, the
       definition of that term contained in R.C. 2505.02 has been held to be
       applicable to criminal proceedings. See State v. Collins (1970), 24 Ohio
       St.2d 107, 108, 265 N.E.2d 261; State v. Miller (1953), 96 Ohio App.
       216, 217, 121 N.E.2d 660.

              As relevant to this appeal, R.C. 2505.02 states that:

              "An order affecting a substantial right in an action which in effect
       determines the action and prevents a judgment, (or) an order affecting
       a substantial right made in a special proceeding * * * is a final order
       which may be reviewed * * *."

              Appellant contends that the overruling of a motion to dismiss for
       former jeopardy is a final order within the meaning of R.C. 2505.02.
       Appellant apparently concedes the validity of this state's policy
       prohibiting interlocutory appeals, but argues that this court has, in the
                                                                                  - 12 -


      past, allowed immediate appeals from orders which affect a substantial
      right that cannot be preserved by an appeal after judgment.
             It is clear that the Double Jeopardy Clause is a guarantee
      against being twice put to trial for the same offense. Abney v. United
      States (1977), 431 U.S. 651, 661, 97 S.Ct. 2034, 2041, 52 L.Ed.2d
      651. It is equally clear that an order affecting a right of constitutional
      dimensions is an "order affecting a substantial right," within the
      contemplation of R.C. 2505.02. It would seem reasonable to conclude
      that some form of review prior to judgment is necessary to preserve
      this right. Id. at page 660, 97 S.Ct. at page 2040.
             More troublesome, however, is the meaning of the term "special
      proceeding" embodied in R.C. 2505.02. Although this court, in State v.
      Collins, supra, pointed out that most modern courts have been less
      than precise in defining "special proceeding," it held that a pre-trial
      proceeding on a motion to suppress evidence is a special proceeding
      within the meaning of R.C. 2505.02.
             We believe that a proceeding on a motion to dismiss for double
      jeopardy should be considered a special proceeding as well. A claim of
      double jeopardy raises an issue entirely collateral to the guilt or
      innocence of the defendant. While it is a complete defense, it is more
      than that, for it, in principle, bars a new trial as well as a new conviction.
      Additionally, an erroneous decision on a double jeopardy claim cannot
      be effectively reviewed after judgment within the second trial; by that
      time, the defendant's right has been violated. Thomas at 257-258. See
      also Gunnell at ¶41-42 (Lanzinger, J. concurring).

      {¶38} This brings us to Crago, which, by a 5-2 vote with no analysis and
merely quoting R.C. 2505.02 and 2953.02, the Ohio Supreme Court reversed
Thomas, holding that a defendant cannot file a pre-trial direct appeal to remedy a
                                                                                  - 13 -


double jeopardy violation, with the dissent likewise merely cited to Thomas. Three
years later the court revisited the issue in Wenzel, and by a 4-3 vote, reiterated that
the only remedy for a denial of a motion to dismiss on double jeopardy grounds was
a post-trial direct appeal, because it is not a final appealable order, and cannot be
reviewed via a pre-trial writ of habeas corpus, prohibition or any other writ. Wenzel at
66-67.    The majority recounted the history and holdings of Owens, Thomas and
Crago, explicitly stating that Crago did not revive the extraordinary writ option in
Owens. Id. at 66. In a footnote, the Court made the statement that Abney did not
mandate that the states provide a pre-trial appeal, concluding that Crago was
decided pursuant to Ohio's appellate jurisdictional statute. Id. at 67. This footnote is
superficially dismissive. First, it failed to address the entire constitutional analysis of
Abney and its predecessors. Second, it ignored the holdings in Benton and McKane,
that when a state chooses to provide criminal defendants with an appeal, that
process must comport with due process, and be measured against the same
standard applicable to the federal government as articulated in Abney.
         {¶39} Read in tandem, Crago and Wenzel have cut off all pre-trial
opportunities for a defendant to seek protection from being placed twice in jeopardy
by the State of Ohio; the only remedy is to seek habeas relief in the federal courts.
See, e.g., Harpster v. Ohio, 128 F.3d 322, 325-326.
         {¶40} I agree with the dissenting opinions in Wenzel.        First, as noted by
Justice Sweeney:

               In Bell v. Mt. Sinai Hosp. (1993), 67 Ohio St.3d 60, 63, 616
         N.E.2d 181, 184, this court defined a "final appealable order" for
         purposes of R.C. 2505.02, as follows:
               "An order which affects a substantial right has been perceived to
         be one which, if not immediately appealable, would foreclose
         appropriate relief in the future. See, generally, Union Camp Corp. v.
         Whitman (1978), 54 Ohio St.2d 159, 162, 8 O.O.3d 155, 157, 375
                                                                             - 14 -


      N.E.2d 417, 419-420; State v. Collins (1970), 24 Ohio St.2d 107, 110,
      53 O.O.2d 302, 303-304, 265 N.E.2d 261, 263; Morris v. Invest. Life
      Ins. Co. (1966), 6 Ohio St.2d 185, 189, 35 O.O.2d 304, 306, 217 N.E.2d
      202, 206; In re Estate of Wyckoff, supra [1957], 166 Ohio St. [354] at
      359, 2 O.O.2d [257] at 260, 142 N.E.2d [660] at 664."
             I therefore believe that, as a matter of statutory law, an order
      which denies a motion to dismiss on the grounds of double jeopardy is
      a final appealable order because as a matter of constitutional law the
      protections against multiple prosecutions could not be vindicated on
      appeal following a second trial. Accordingly, the order denying the
      motion to dismiss would be "[a]n order * * * which, * * * if not
      immediately appealable, would foreclose appropriate relief in the
      future." Id. at 72-73 (Sweeney, J. dissenting).

      {¶41} Second, as noted by Justice Wright, "[w]e are required to provide a pre-
trial means for a defendant to obtain judicial review of the denial of a motion to
dismiss on the ground of double jeopardy. A post-trial appeal is not constitutionally
adequate because the protection against double jeopardy is not just protection
against being punished twice for the same offense, it is also protection against being
tried twice for the same offense." (Emphasis sic.) Id. at 73 (Wright, J. dissenting).
This rationale is consistent with the principles articulated in Benton and McKane that
when states choose to extend statutory criminal appeal rights, the process must
comport with due process as measured against federal constitutional jurisprudential
standards.
      {¶42} Ours is a government of limited powers delegated to it by the people in
the Constitution, and the Bill of Rights memorializes rights upon which the
government shall not encroach. As argued by Alexander Hamilton and mandated by
the Ninth Amendment to the U.S. Constitution. "The enumeration in the Constitution
of certain rights shall not be construed to deny or disparage others retained by the
                                                                                    - 15 -


people."    Those protections were reinforced by the Fourteenth Amendment's
guarantee of due process from both the national and state governments. As stated
in Federalist 78: "[T]he courts were designed to be an intermediate body between the
people and the legislature, in order, among other things, to keep the latter within the
limits assigned to their authority * * *. [W]hen the will of the legislature, declared in its
statutes, stands in opposition to that of the people, declared in the Constitution, the
judges ought to be governed by the latter rather than the former." The Federalist No.
78 (Gideon 2001), 404.
       {¶43} In Blueford, Justice Sotomayor eloquently tied together the significance
of the judiciary's obligation to protect the people from multiple prosecutions:

              At its core, the Double Jeopardy Clause reflects the wisdom of
       the founding generation, familiar to " 'every person acquainted with the
       history of governments,' " that " 'state trials have been employed as a
       formidable engine in the hands of a dominant administration.... To
       prevent this mischief the ancient common law ... provided that one
       acquittal or conviction should satisfy the law.' " Ex parte Lange, 18
       Wall. 163, 171, 21 L.Ed. 872 (1874) (quoting Commonwealth v. Olds,
       15 Ky. 137, 139 (1824)). The Double Jeopardy Clause was enacted "
       '[t]o perpetuate this wise rule, so favorable and necessary to the liberty
       of the citizen in a government like ours.' " 18 Wall., at 171. This case
       demonstrates that the threat to individual freedom from reprosecutions
       that favor States and unfairly rescue them from weak cases has not
       waned with time. Only this Court's vigilance has. Blueford 132 S.Ct. at
       2060 (Sotomayor, J. dissenting).

       {¶44} This Court's vigilance cannot wane. Therefore, I conclude that the trial
court's order denying Anderson's motion to dismiss pursuant to the Double Jeopardy
and Due Process clauses is a final appealable order.              Ohio's scheme of only
providing a post-trial remedy to vindicate this fundamental right is unconstitutional.
                                                                               - 16 -


VUKOVICH, J., REPRESENTING TWO OUT OF FOUR VOTES UPON EN BANC
REVIEW, (but failing to garner the three votes needed to overturn the court’s prior
decision which found that a final appealable order exists in this case).


       {¶45} In 1980, the Ohio Supreme Court held that the denial of a motion to
dismiss on double jeopardy grounds was a final appealable order. State v. Thomas,
61 Ohio St.2d 254, 257-258, 400 N.E.2d 897 (1980), overruling Owens v. Campbell,
27 Ohio St.2d 264, 267, 272 N.E.2d 116 (1971).            However, that holding was
overruled, and the Court reverted to its position that the denial of a motion to dismiss
on double jeopardy grounds is not a final appealable order. State v. Crago, 53 Ohio
St.3d 243, 244-245, 559 N.E.2d 1353 (1990) (applying prior version of R.C. 2505.02,
which contained present-day language said by appellant to be applicable herein:
order affects a substantial right in an action which in effect determines the action and
prevents a judgment).
       {¶46} Since Crago, the Court maintains that the proper way to seek judicial
review of a denial of a motion to dismiss on double jeopardy grounds is a direct
appeal to the appellate court at the conclusion of the trial court proceedings. Wenzel
v. Enright, 68 Ohio St.3d 63, 66, 623 N.E.2d 69 (1993).             The Wenzel Court
specifically stated that the United States Supreme Court’s decision in Abney, cited in
our original judgment entry finding a final appealable order in this case, deals only
with the finality of an order under federal law and does not require state courts to
accept such interlocutory appeals. Id. at 67, fn.1, declining to adopt Abney v. United
States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977).
       {¶47} Thereafter, the Ohio Supreme Court reiterated that the proper legal
remedy is to raise any double jeopardy contentions by a pretrial motion to dismiss
and, if the motion is denied, to file a direct appeal from the subsequent conviction.
State ex rel. White v. Junkin, 80 Ohio St.3d 335, 338, 686 N.E.2d 267 (1997). We
cited these cases in our Hubbard decision, which was the case we used to
reconsider the within cause en banc. See State v. Hubbard, 135 Ohio App.3d 518,
                                                                                 - 17 -


520, 734 N.E.2d 874 (7th Dist.1999) (denial of a motion to dismiss on the basis on
double jeopardy is not a final appealable order).
       {¶48} Appellant acknowledged this obstacle to his appeal proceeding and
recognized that the rationale behind Crago requires a dismissal of his appeal of the
trial court’s refusal to hold that his due process rights were violated. However, he
posits that the Supreme Court’s Crago holding, that the denial of a double jeopardy
claim cannot be appealed until after conviction, is an “absurd” position. He opines
that federal courts share his belief that the Crago holding is absurd, citing Harpster v.
Ohio, 128 F.3d 322, 325-326 (6th Cir.1997) (merely allowing federal habeas to
proceed when claims have been rejected in the state trial court but are not subject to
interlocutory appeal under the law of the state).
       {¶49} In asking us to ignore Crago, he explains that he has a substantial right
to due process and to be free from double jeopardy. He urges that the trial court’s
decision is appealable at this time because it affected a substantial right that in effect
determined the action and prevented a judgment. Appellant asks that we adopt the
rationale behind a dissent after a majority of this court held that the denial of the
defendant’s motion to suppress was not immediately appealable as the defendant
failed to show that he would not be afforded meaningful or effective relief by way of
an appeal following possible conviction. See State v. Ricciardi, 135 Ohio App.3d
155, 733 N.E.2d 291 (7th Dist.1999) (Cox, J., dissenting).
       {¶50} There are judges around the state who agree with appellant’s position
that Crago should be overruled.        See, e.g., Wenzel, 68 Ohio St.3d at 67-68
(Sweeney, J., dissenting); State v. Gunnell, 2d Dist. No. 09CA13, 2010-Ohio-4415
(Brogan, J., concurring to encourage the Ohio Supreme Court to revisit Crago and
reinstate Thomas). Be that as it may, an appellate court cannot violate Supreme
Court precedent because the appellate court disagrees with that precedent,
especially in response to a defendant’s claim that we should ignore the Supreme
Court’s position because it is “absurd.” See Crago, 53 Ohio St.3d at 245 (pointing
out that the court of appeals was bound by the prior decision Thomas). See also
                                                                               - 18 -


State v. Crago, 93 Ohio App.3d 621, 640, 639 N.E.2d 801 (10th Dist.1994) (noting
that appellate courts are bound by the Supreme Court’s 1990 Crago holding).
      {¶51} The other en banc opinion in this case essentially attempts to
distinguish Crago on three bases: (1) Crago was not the product of multiple trials as
is the case here; (2) the provisional remedy option applies, which did not exist at the
time of Crago; and (3) Crago was based solely upon double jeopardy rather than
double jeopardy and due process as is the case here.
      {¶52} As to the first issue, the Crago Court laid down a general rule that the
denial of a motion to dismiss on double jeopardy grounds is not appealable. An
appellate court’s creation of exceptions to this rule based upon the number of trials is
a violation of the general rule. Appealability should not be based upon the number of
prior cases and/or what type of events resulted in mistrials. Such factors may be
relevant to the eventual merit determination, but they do not govern appealability.
      {¶53} (We also note here that one mistrial occurred during jury selection when
appellant’s second chair counsel fell asleep, and one of the retrials was the result of
a {non-unanimous} appellate court reversal of a conviction.) See State v. Anderson,
7th Dist. No. 03MA252, 2006-Ohio-4618 (Vukovich, J., dissenting on grounds that
there existed overwhelming evidence of appellant’s guilt and finding any error
harmless beyond a reasonable doubt).
      {¶54} Contrary to the other en banc opinion’s second attempt to distinguish
Crago, the case before us does not involve a provisional remedy. An order granting
or denying a provisional remedy is a final order if: (a) the order in effect determines
the action with respect to the provisional remedy and prevents a judgment in the
action in favor of the appealing party with respect to the provisional remedy, and (b)
the appealing party would not be afforded a meaningful or effective remedy by an
appeal following final judgment as to all proceedings, issues, claims, and parties in
the action. R.C. 2505.02(B)(4)(a)-(b).
      {¶55} Initially, we point out that third prong of the provisional remedy
appealability test is essentially disposed of by the Ohio Supreme Court’s holding that
                                                                                - 19 -


there is an adequate remedy in the ordinary course of law to challenge an adverse
ruling on the double jeopardy issue (by an appeal to the court of appeals at the
conclusion of the trial court proceedings). Wenzel, 68 Ohio St.3d at 66 (thus holding
that a writ is not permissible). See also State ex rel. White, 80 Ohio St.3d at 338
(defendant “has adequate legal remedies to raise his double jeopardy contentions by
a pretrial motion to dismiss, and if it is denied and he is subsequently convicted, by
direct appeal.”). Additionally, this court has stated:
       {¶56} “Appellant in this case would not be denied a meaningful or effective
appeal on the issue of double jeopardy, along with any other trial issue that may
develop, should he be required to wait until conviction and sentence before an
appeal is taken. Moreover, appellant may still be acquitted at trial, rendering the issue
moot.” Hubbard, 135 Ohio App.3d at 521.
       {¶57} If a meaningful and effective review of double jeopardy issues can
occur after trial, then so can there be a meaningful and effective post-trial review of
due process issues that are based upon the same principles relevant to the double
jeopardy claim. See Hubbard, 135 Ohio App.3d at 521. See also State v. Tate, 179
Ohio App.3d 71, 2008-Ohio-5686, ¶ 24, 28-29, 31 (7th Dist.) (citing Hubbard to
dispose of this prong of provisional remedy in a case involving an appeal of trial
court’s denial of defendant’s motion to dismiss on grounds that state lost a prior
appeal of a suppression decision).
       {¶58} In any event, the proceeding involved here does not fit into the
provisional remedy category. A provisional remedy is a proceeding ancillary to an
action. R.C. 2505.02(A)(3). An ancillary proceeding is “one that is attendant upon or
aids another proceeding.” State v. Muncie, 91 Ohio St.3d 440, 449, 746 N.E.2d 1092
(2001). Examples listed in the final appealable order statute include a proceeding for
a preliminary injunction, attachment, discovery of privileged matter, and suppression
of evidence. R.C. 2505.02(A)(3). Other examples are an order for forced medication
of an incompetent criminal defendant or a mandatory bindover hearing for a juvenile.
In re A.J.S., 120 Ohio St.3d 85, 2008-Ohio-5307, 897 N.E.2d 629, ¶ 20, 23.
                                                                                  - 20 -


       {¶59} This court has previously declared that a defendant’s request to dismiss
a criminal complaint is not ancillary to the criminal action as it does not aid the action,
nor is it attendant upon the action. Tate, 179 Ohio App.3d 71 at ¶ 21 (where state
continued to prosecute upon newly discovered evidence after losing state’s appeal).
See also State v. Brown, 8th Dist. No. 84229, 2004-Ohio-5587, ¶ 11 (the dismissal of
a criminal complaint cannot be considered a proceeding ancillary to the action).
Rather, a motion to dismiss seeks the entire termination of the entire criminal action.
Id.
       {¶60} “Indeed, a motion to dismiss is not ‘provisional’ in nature because the
status quo may not be preserved depending on how the trial court rules on the
motion.    For instance, if the trial court grants the motion to dismiss, then the
adjudication of the motion may be dispositive of the entire proceeding.”           City of
Mentor v. Babul, 11th Dist. No. 98-L-244 (July 16, 1999) (the adjudication of a motion
to dismiss on double jeopardy grounds does not fall within the scope of a provisional
remedy).
       {¶61} Accordingly, a request to dismiss on double jeopardy and due process
grounds does not involve a provisional remedy. See Hubbard, 135 Ohio App.3d at
521 (“We find that a motion to dismiss on the grounds of double jeopardy is not a
provisional remedy as defined by the amended statute”). See also Tate, 179 Ohio
App.3d 71 at ¶ 21; Brown, 8th Dist. No. 84229 at ¶ 11; Babul, 11th Dist. No. 98-L-
244.   In fact, appellant did not resort to the provisional remedy option in R.C.
2505.02(B)(4).
       {¶62} Instead, appellant’s reply to the state’s motion to dismiss the appeal
argued the trial court’s refusal to discharge him was appealable based upon R.C.
2505.02(B)(1). This subdivision provides that an order is final if it “affects a
substantial right in an action that in effect determines the action and prevents a
judgment”. R.C. 2505.02(B)(1).
       {¶63} The Supreme Court has already held the denial of motion to dismiss on
double jeopardy (and collateral estoppel) grounds does not involve a substantial right
                                                                               - 21 -


that determines the action and prevents a judgment. Crago, 53 Ohio St.3d at 244, fn.
2 (nor is it an order that affects a substantial right made in a special proceeding or
upon a summary application in an action after judgment). See also Wenzel, 68 Ohio
St.3d at 66 (decision of a trial court denying a motion to dismiss on the ground of
double jeopardy is not a final appealable order). Thus, the denial of a motion to
dismiss on double jeopardy grounds is not immediately appealable. Id.; Hubbard,
135 Ohio App.3d at 522.
       {¶64} This leads to the third attempt in this court’s other en banc decision to
distinguish Crago from the case before us. That is, it is proposed that this defendant
created finality by adding a due process argument to his double jeopardy argument in
further support of his claim that his case should be dismissed rather than retried.
       {¶65} However, appellant himself recognizes that the rationale behind Crago
is just as applicable to his due process argument as it is to his double jeopardy
argument since both arguments revolve around the same principles of general
fairness. See Appellant’s Apr. 5, 2011 Reply to State’s Motion to Dismiss Appeal, p.
5-6.   See also Appellant’s Feb. 2, 2011 Motion to Dismiss Indictment and for
Discharge (using the “wearing down” and “fair play” arguments about multiple trials
under both the due process and the double jeopardy arguments).            The decision
refusing to dismiss does not in effect determine the action and prevent a judgment in
the action.
       {¶66} As touched on above when discussing provisional remedies, there is no
reason to treat the labels for the motion differently for purposes of appealability. In
Tate, we found the denial of a Crim.R. 12(K) motion to dismiss based upon a lost
state’s appeal to be a non-final order, and we compared the case to Hubbard where
we found the denial of a motion to dismiss on grounds of double jeopardy to be non-
final order. See Tate, 179 Ohio App.3d 71 at ¶ 28-29, 31.
       {¶67} If the denial of a motion to dismiss on double jeopardy and collateral
estoppel grounds does not involve a substantial right that determines the action and
prevents a judgment, then neither does the denial of a motion to dismiss on double
                                                                              - 22 -


jeopardy and due process grounds. See Crago, 53 Ohio St.3d at 244, fn.2. See also
Hubbard, 135 Ohio App.3d at 522 (using double jeopardy case to address Crim.R.
12(K) finality issue). Similarly, if the denial of a motion to dismiss on Crim.R. 12(K)
grounds is not final, then neither is the denial of a motion to dismiss on due process
grounds final. See Tate, 179 Ohio App.3d 71 at ¶ 28-29, 31.
      {¶68} In conclusion, the denial of a motion to dismiss on double jeopardy and
due process grounds is not a final appealable order, and no exception should be
created based upon the number of prior trials. However, as the en banc vote is two
to two, this court’s original decision stands (where two out of three judges on the
panel accepted the appeal as final). See June 10, 2011 Judgment Entry, attached.
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