[Cite as State v. Strong, 2014-Ohio-4209.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 100766




                                       STATE OF OHIO
                                                    PLAINTIFF-APPELLANT

                                              vs.

                                        DANA STRONG
                                                    DEFENDANT-APPELLEE




                                    JUDGMENT:
                              REVERSED AND REMANDED



                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-13-573499-A

        BEFORE: E.T. Gallagher, J., Celebrezze, P.J., and Blackmon, J.

        RELEASED AND JOURNALIZED: September 25, 2014
ATTORNEYS FOR APPELLANT

Timothy J. McGinty
Cuyahoga County Prosecutor

BY:    James M. Price
       Brett Hammond
Assistant Prosecuting Attorneys
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

David L. Grant
Grant & O’Malley, Co., L.P.A.
1370 Ontario Street
Standard Building # 1350
Cleveland, Ohio 44113

Robert A. Dixon
4403 St. Clair Avenue
Cleveland, Ohio 44103
EILEEN T. GALLAGHER, J.:

         {¶1} Plaintiff-appellant, the state of Ohio (“the state”), appeals from the trial

court’s order dismissing the indictment against defendant-appellee, Dana Strong

(“Strong”), with prejudice. Finding merit to the appeal, we reverse and remand.

         {¶2} In April 2013, Strong was re-indicted on one count of robbery in violation of

R.C. 2911.02(A)(3), in case CR-13-573499-A. This case had twice previously been

indicted and dismissed without prejudice.             Respectively CR-07-493141-A and

CR-09-526460-A. The first dismissal entry is silent as to the reason, whereas the second

indictment was dismissed without prejudice due to the state’s witness failing to appear for

trial.

         {¶3} In the instant case, on November 13, 2013, the trial court addressed Strong’s

pending motion to dismiss for purposes of speedy trial on the record. The court calculated

the number of days Strong had been in jail pending the outcome of the case. At the

conclusion of the hearing, the court denied Strong’s motion to dismiss, finding that his

right to a speedy trial had not been violated.

         {¶4} On December 11, 2013, the case was called for trial, however, the state’s key

witness failed to appear. Strong made an oral motion to dismiss, requesting that the

dismissal be made with prejudice. The state objected. Strong argued the case should be

dismissed with prejudice because it had been indicted and dismissed twice before due to

the state’s witness failing to appear for trial and his due process rights had been violated.
       {¶5} The trial court granted Strong’s oral motion to dismiss, dismissing the case

with prejudice.    It is from this dismissal that the state now appeals, raising two

assignments of error. See R.C. 2945.67(A) (which provides that a prosecuting attorney

may appeal as a matter of right any decision of a trial court in a criminal case that grants a

motion to dismiss all or part of an indictment). We find the first assignment of error

dispositive of the appeal.

                                 Dismissal with Prejudice

       {¶6} In its first assignment of error, the state argues the trial court erred by

dismissing the indictment against Strong with prejudice absent a finding that Strong was

denied a constitutional or statutory right.

       {¶7} A trial court’s dismissal of an indictment is reviewed for an abuse of

discretion. State v. Walton, 8th Dist. Cuyahoga No. 87347, 2006-Ohio-4771, ¶ 4, citing

State v. Tankers, 8th Dist. Cuyahoga Nos. 72398 and 72399, 1998 Ohio App. LEXIS

1724 (Apr. 23, 1998). An abuse of discretion implies a decision that either is without a

reasonable basis or is clearly wrong. Id., citing Angelkovski v. Buckeye Potato Chips

Co., 11 Ohio App.3d 159, 463 N.E.2d 1280 (10th Dist.1983).

       {¶8} A trial court has the inherent right to dismiss an indictment, pursuant to

Crim.R. 48(B), which provides:

       If the court over objection of the state dismisses an indictment, information,
       or complaint, it shall state on the record its findings of fact and reasons for
       the dismissal.
       {¶9} Although Crim.R. 48 allows a trial court to dismiss an indictment, the

dismissal may only be made with prejudice where the court finds that “the defendant has

been denied a constitutional right or statutory right, the violation of which would, in

itself, bar prosecution.” State v. Peters, 8th Dist. Cuyahoga No. 92791, 2009-Ohio-5836,

¶ 12, citing Fairview Park v. Fleming, 8th Dist. Cuyahoga Nos. 77323 and 77324, 2000

Ohio App. LEXIS 5714 (Dec. 7, 2000); State v. Tate, 8th Dist. Cuyahoga Nos. 93384,

93385, and 93386, 2010-Ohio-3312, ¶ 32; State v. Dixon, 14 Ohio App.3d 396, 471

N.E.2d 864 (8th Dist.1984). See also State v. Johnson, 8th Dist. Cuyahoga No. 87348,

2006-Ohio-4772, ¶ 4; State v. Lababidi, 8th Dist. Cuyahoga No. 89460, 2008-Ohio-574, ¶

7; State v. Walton, 8th Dist. Cuyahoga No. 87347, 2006-Ohio-4771, ¶ 5.

       {¶10} In the instant case, defense counsel stated at the hearing:

       Your Honor, at this time, we would make a motion to dismiss. We would

       also ask the Court to consider dismissing this matter with prejudice. This

       is, at least, the third time this case, in predecessor case numbers, has been

       dismissed due to the failure of the State to produce the witness. My client

       shouldn’t have to have this hanging over his head anymore.

When asked by the court under what authority the case could be dismissed with prejudice,

defense counsel responded by stating, “I think it’s a violation of my client’s rights to due

process.”

       {¶11} The trial court made its ruling on the oral motion, stating:
       I’m going to dismiss it with prejudice because he has served over four

       hundred days in county jail on this matter. I understand, Mr. Colan [the

       state’s attorney], your argument about some of the delay was caused by him.

           But, repeatedly, your witness, Mr. Davis, has failed to appear.

Having thoroughly reviewed the transcript, we find the trial court’s reasoning to be

unclear and inadequate. The trial court’s reference to time served and to the failure of

the state’s witness to appear leave this court to speculate as to what violation, if any, the

trial court believed had occurred, i.e. speedy trial, right to trial, right to cross-examination,

due process, etc.

       {¶12} Regardless, in failing to set forth a straightforward constitutional or statutory

violation, as well as in failing to provide clear reasoning to support its decision, we find

the trial court did not meet the requirements of Crim.R. 48, and thus abused its discretion

in dismissing the case with prejudice.

       {¶13} Accordingly, the first assignment of error is sustained. The trial court’s

order dismissing the case with prejudice is hereby reversed and vacated. The judgment is

remanded to the trial court to enter a dismissal without prejudice. The first assignment of

error is dispositive. We find the second assignment of error is therefore moot and shall

not be addressed.1

       {¶14} Judgment reversed and remanded.


       1 In its second assignment of error, the state argues the trial court erred in
ordering a state’s witness appear for a final pretrial.
       It is ordered that appellee and appellant share costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



EILEEN T. GALLAGHER, JUDGE

FRANK D. CELEBREZZE, JR., P.J., CONCURS;
PATRICIA ANN BLACKMON, J., DISSENTS WITH SEPARATE OPINION


PATRICIA ANN BLACKMON, J., DISSENTING:

       {¶15} I would affirm the trial court’s dismissal with prejudice. It is clear that the

trial court did not find the defendant’s statutory right was violated, since it denied

defendant’s speedy trial violation. Nonetheless, defendant does have a constitutional

right to confront witnesses against him. In this case, the primary witness was the accuser

who the state failed to produce three times. In this situation, the trial court correctly

exercised its discretion to dismiss the case with prejudice.
