[Cite as State v. Hamad, 2019-Ohio-2394.]

                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                     TRUMBULL COUNTY, OHIO


 STATE OF OHIO,                                        :          MEMORANDUM OPINION

                   Plaintiff-Appellee/                 :
                   Cross-Appellant,                               CASE NO. 2017-T-0108
                                                       :
         - vs -
                                                       :
 NASSER Y. HAMAD,
                                                       :
                   Defendant-Appellant/
                   Cross-Appellee.                     :


 Criminal Appeal from the Trumbull County Court of Common Pleas.
 Case No. 2017 CR 00133.

 Judgment: Cross-appeal dismissed.


 Dennis Watkins, Trumbull County Prosecutor; Christopher Becker, Michael A. Burnett,
 and Ashleigh Musick, Assistant Prosecutors, Administration Building, 160 High Street,
 N.W., Warren, OH 44481-1092 (For Plaintiff-Appellee/Cross-Appellant).

 Samuel H. Shamansky, Donald L. Regensburger, Colin Peters, and Sarah A. Hill,
 Samuel H. Shamansky Co., LPA, 523 South Third Street, Columbus, OH 43215 (For
 Defendant-Appellant/Cross-Appellee).


ON RECONSIDERATION1

TIMOTHY P. CANNON, J.

        {¶1}      This matter is before us on a notice of appeal and a notice of cross-appeal

from the judgment of conviction entered by the Trumbull County Court of Common Pleas

against Nasser Y. Hamad. Hamad was sentenced to the Lorain Correctional Institution


1. The original announcement of decision, State v. Hamad, 11th Dist. Trumbull No. 2017-T-0108, 2019-
Ohio-924, issued March 18, 2019, is hereby vacated. This memorandum opinion, issued upon
reconsideration, is the court’s journalized decision with regard to the cross-appeal. See App.R. 26(A)(1).
on November 20, 2017, and filed his notice of appeal on November 22, 2017. The state

of Ohio, by and through the prosecuting attorney, filed its notice of cross-appeal on

November 29, 2017.

        {¶2}   Prior to the enactment of R.C. 2945.67, the state did not have the right to

appeal decisions in criminal cases. “R.C. 2945.67 was enacted to balance the disparity

between a defendant’s right to appeal and the absence of any such right possessed by

the State.” State v. Kole, 11th Dist. Ashtabula No. 99-A-0015, 2000 WL 1460031, *2

(Sept. 29, 2000) (citation omitted); see also State v. DeJesus, 11th Dist. Ashtabula No.

99-A-0063, 2000 WL 1733562, *1 (Nov. 17, 2000). R.C. 2945.67 now grants the state of

Ohio a substantive right to appeal decisions in criminal cases, which is limited to certain

instances where an appeal is either permitted as a matter of right or may be permitted by

leave of the appellate court.

        {¶3}   The state may appeal, as a “matter of right,” any decision in a criminal case

that (1) grants a motion to dismiss all or part of an indictment, information or complaint;

(2) grants a motion to suppress evidence; (3) grants a motion for the return of seized

property; or (4) grants postconviction relief. R.C. 2945.67(A). The state has not appealed

any such decision in the case sub judice.

        {¶4}   The state may also appeal, as a matter of right, a sentence imposed upon

a defendant who is convicted of a felony. Id., citing R.C. 2953.08. The state’s right to

appeal a felony sentence is limited, however, to the grounds enumerated in R.C.

2953.08(B)(1)-(3).    Relevant here, R.C. 2953.08(B)(2) provides that a prosecuting

attorney may appeal a felony sentence on the grounds that the “sentence is contrary to

law.”

        {¶5}   Finally, the state may also appeal “any other decision, except the final

verdict” in a criminal case, but only “by leave of the court to which the appeal is taken.”
                                             2
R.C. 2945.67(A). The prosecuting attorney must seek leave from the appellate court

according to the procedure outlined in App.R. 5(C). “‘A motion for leave to appeal is a

necessary prerequisite under R.C. 2945.67(A) for the state’s right of appeal to attach.

Any failure to follow this directive deprives the appellate court of jurisdiction and requires

that such appeal be dismissed.’” Kole, supra, at *3, quoting State v. Metz, 4th Dist.

Washington No. 93CA18, 1995 WL 695078, *5 (Nov. 20, 1995), citing generally State v.

Wallace, 43 Ohio St.2d 1 (1975). “Further, it is irrelevant that the State raises its argument

in a cross appeal rather than in an appeal per se.” Id. at *4; see also State v. Williams,

1st Dist. Hamilton Nos. C-060631 & C-060668, 2007-Ohio-5577, ¶53-55.

       {¶6}   In its cross-appeal, the state challenges (1) the trial court’s jury instruction

on self-defense and (2) the trial court’s merger of certain counts of attempted aggravated

murder for sentencing purposes.

       {¶7}   Pursuant to R.C. 2945.67(A), the state was required to seek leave to appeal

any alleged error with the trial court’s jury instructions. Because it did not so, we are

without jurisdiction to consider that assignment of error. Kole, supra, at *4.

       {¶8}   Pursuant to R.C. 2953.08(B)(2), the state was not required to seek leave to

assign as error that the trial court’s merger of certain felony offenses was “contrary to

law.” See, e.g., State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, ¶14, citing State

v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, ¶4 and R.C. 2953.08(A)(4) (“Pursuant to

R.C. 2953.08(G)(2), an appellate court may vacate a sentence and remand for a new

sentencing hearing if the sentence is contrary to law. A sentence that contains an allied-

offenses error is contrary to law.”).

       {¶9}   Due to Hamad’s death, however, we conclude that this assignment of error

is moot. The justifications for allowing Hamad’s appeal to proceed after his death simply

do not apply to the state’s cross-appeal. Were this court to find that the trial court’s entry
                                              3
of sentence contains an allied-offenses error, there is no relief we could offer the state

without violating fundamental notions of due process. Because it is moot, we are also

without jurisdiction to consider this assignment of error. See, e.g., Nextel W. Corp. v.

Franklin Cty. Bd. of Zoning Appeals, 10th Dist. Franklin No. 03AP-625, 2004-Ohio-2943

(with limited exceptions, a court may not entertain jurisdiction over a moot question).

       {¶10} Accordingly, the state of Ohio’s cross-appeal is hereby dismissed, in its

entirety, for lack of jurisdiction.


THOMAS R. WRIGHT, P.J.,

MARY JANE TRAPP, J.,

concur.




                                            4
