[Cite as State v. Emich, 2018-Ohio-627.]


STATE OF OHIO                     )                  IN THE COURT OF APPEALS
                                  )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                  )

STATE OF OHIO                                        C.A. No.       17CA0039-M

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
JEFFREY K. EMICH                                     COURT OF COMMON PLEAS
                                                     COUNTY OF MEDINA, OHIO
        Appellant                                    CASE No.   16CR0468

                                 DECISION AND JOURNAL ENTRY

Dated: February 20, 2018



        CARR, Judge.

        {¶1}     Defendant-Appellant Jeffrey K. Emich appeals from the judgment of the Medina

County Court of Common Pleas. This Court affirms.

                                                I.

        {¶2}     In August 2016, an indictment was filed alleging that Emich committed identity

fraud in violation of R.C. 2913.49(B)(1), a felony of the fifth degree. Emich filed a motion to

dismiss based upon double-jeopardy grounds. Emich argued that he was previously prosecuted

for falsification in municipal court based upon the same incident, had pleaded guilty in that case,

and thus asserted that the present prosecution was barred by double jeopardy. The State opposed

Emich’s motion and a hearing was held. Ultimately, in September 2016, the trial court denied

Emich’s motion. Subsequently, Emich pleaded guilty to identity fraud. The trial court sentenced

Emich accordingly.
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       {¶3}    Emich has appealed, raising two assignments of error for our review, which will

be addressed out of sequence to facilitate our analysis.

                                                 II.

       {¶4}    Before addressing the merits of this appeal, we pause to discuss whether we have

jurisdiction. Specifically, we examine whether Emich’s appeal is timely. Emich’s notice of

appeal was filed pro se on May 26, 2017. Therein, Emich asserted that he was appealing “all

appealable issues[.]” Emich’s sentencing entry was journalized May 3, 2017; thus, an appeal

from his conviction is timely. See App.R. 4(A).

       {¶5}    Nonetheless, the State has argued that Emich’s appeal is untimely because his

appeal relates to the trial court’s denial of his motion to dismiss based upon double jeopardy.

The State correctly notes that the denial of a motion to dismiss based upon double-jeopardy

grounds is a final appealable order. See State v. Anderson, 138 Ohio St.3d 264, 2014-Ohio-542,

¶ 61. Emich’s motion to dismiss was denied in an entry journalized on September 27, 2016. The

State maintains that, pursuant to App.R. 4(A), Emich was required to appeal within 30 days from

September 27, 2016. Therefore, his May 26, 2017 notice of appeal was untimely. Emich argues

that, while he was permitted to immediately appeal from the September 2016 order, he was not

required to do so. Emich relies on law that predates Anderson, which the State contends was

overruled by Anderson.

       {¶6}    However, we cannot conclude that Anderson itself addresses the issue. While

Anderson provides that a defendant can immediately appeal the denial of a motion to dismiss on

double-jeopardy grounds, it does not address the procedural consequences, if any, of a

defendant’s failure to do so. Thus, we are unpersuaded by the State’s argument.     Further, we

remain mindful that “the protection against double jeopardy is not just protection against being
                                                3


punished twice for the same offense, it is also the protection against being tried twice for the

same offense.”    (Internal quotations and citation omitted.)     Anderson at ¶ 58.     Thus, an

interlocutory appeal would protect both aspects of the right. Accordingly, a defendant’s failure

to immediately appeal, and to instead wait until a judgment of conviction is journalized, would

necessarily forgo any argument that the defendant could not be subject to a second prosecution,

as such an argument would be moot. See id. at ¶ 58-59. However, the defendant would not be

subject to the full harm of a double-jeopardy violation until the time a judgment of conviction is

entered. Therefore, the denial of the motion to dismiss should also be reviewable following the

entry of the judgment of conviction as that is the point in time that the harm is fully realized.

The State has made no compelling argument as to why this harm should not be reviewable from

the final judgment. Given the foregoing, we proceed to address the merits of Emich’s appeal.

                                ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED BY DENYING APPELLANT’S MOTION TO
       DISMISS DUE TO DOUBLE JEOPARDY VIOLATIONS, IN VIOLATION OF
       THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED
       STATES CONSTITUTION, AND ARTICLE I, SECTION 10 OF THE OHIO
       CONSTITUTION.

       {¶7}    Emich argues in his second assignment of error that the trial court erred in

denying his motion to dismiss based upon double jeopardy. We do not agree.

       {¶8}    First, we note that Emich has not waived this argument by pleading guilty. See

State v. Fitzpatrick, 102 Ohio St.3d 321, 2004-Ohio-3167, ¶ 79; State v. McGee, 9th Dist. Lorain

No. 96CA006507, 1997 Ohio App. LEXIS 2965, *6 (July 2, 1997).

       {¶9}    “We apply a de novo standard of review when reviewing the denial of a motion to

dismiss an indictment on the grounds of double jeopardy.” State v. Toth, 9th Dist. Medina No.

16CA0086-M, 2017-Ohio-5481, ¶ 6, quoting State v. Hartman, 9th Dist. Medina No.
                                                 4


15CA0090-M, 2017-Ohio-1089, ¶ 9. “The Fifth Amendment to the United States Constitution

provides that ‘[n]o person shall * * * be subject for the same offense to be twice put in jeopardy

of life and limb.’ Similarly, Section 10, Article I, Ohio Constitution provides, ‘No person shall

be twice put in jeopardy for the same offense.’” State v. Lamp, 9th Dist. Summit No. 26602,

2013-Ohio-1219, ¶ 5.

       {¶10} “In State v. Zima, 102 Ohio St.3d 61, 2004-Ohio-1807, ¶ 18, * * * the Supreme

Court held that determining whether an accused is being successively prosecuted for the ‘same

offense’ requires courts to apply the ‘same elements’ test articulated in Blockburger [.]” Lamp at

¶ 7. That test provides the

       applicable rule under the Fifth Amendment is that, where the same act or
       transaction constitutes a violation of two distinct statutory provisions, the test to
       be applied to determine whether there are two offenses or only one is whether
       each provision requires proof of a fact which the other does not. * * * A single act
       may be an offense against two statutes, and if each statute requires proof of an
       additional fact which the other does not, an acquittal or conviction under either
       statute does not exempt the defendant from prosecution and punishment under the
       other.

(Internal quotations and citations omitted.) Id. “This test focuses upon the elements of the two

statutory provisions, not upon the evidence proffered in a given case. Thus, the Blockburger test

inquires whether each offense contains an element not contained in the other; if not, they are the

‘same offence’ and double jeopardy bars additional punishment and successive prosecution.”

(Internal citations and quotations omitted.) Toth at ¶ 8.

       {¶11} In his motion to dismiss the indictment, Emich argued that he previously was

charged with falsification and driving under suspension based upon an incident that also formed

the basis of the identity fraud count that was the subject of the indictment in the current matter.

Emich asserted that he pleaded guilty in the previous matter and was sentenced. He argued that

the prosecution for identity fraud thus violated the prohibition against double jeopardy. To his
                                                 5


motion, he attached uncertified copies of what appear to be pages from the docket of his

municipal court cases.

          {¶12} At the hearing on the motion, Emich’s trial counsel presented no witnesses or

evidence and instead relied upon his brief and attached filings. He argued that the falsification

charge was the same charge as the identify fraud charge and thus the indictment should be

dismissed.      In ruling on the motion, the trial court concluded that Emich failed to present

sufficient evidence that he was even convicted of any crime in the prior proceeding. The trial

court pointed out that Emich did not present a copy of the municipal court charging instrument or

a copy of the judgment of conviction. Nonetheless, the trial court went on to state that even if

Emich had in fact been convicted of falsification in municipal court, under the test in

Blockburger v. United States, 284 U.S. 299 (1932), his prosecution for identity fraud was not

barred.

          {¶13} On appeal, Emich has not challenged the trial court’s conclusion that he presented

insufficient evidence to establish his prior conviction, which was the trial court’s primary basis

for denying his motion to dismiss. Instead, Emich solely focuses on whether falsification and

identity fraud have the same elements so as to meet the test in Blockburger. Nonetheless, as the

finding that Emich presented insufficient evidence of a prior conviction remains unchallenged on

appeal, see App.R. 16(A)(7), and formed the basis of the trial court’s decision, we can only

conclude that Emich has not demonstrated that the trial court erred in denying his motion to

dismiss. See also Cardone v. Cardone, 9th Dist. Summit Nos. 18349, 18673, 1998 Ohio App.

LEXIS 2028, *22 (May 6, 1998).

          {¶14} Emich’s second assignment of error is overruled.
                                                  6


                                  ASSIGNMENT OF ERROR I

       APPELLANT WAS PREJUDICED BY TRIAL COUNSEL’S OBJECTIVELY
       DEFICIENT PERFORMANCE IN LITIGATING THE MOTION TO DISMISS
       DUE TO DOUBLE JEOPARDY VIOLATIONS, IN VIOLATION OF THE
       SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
       CONSTITUTION.

       {¶15} Emich argues in his first assignment of error that he received ineffective

assistance of trial counsel in litigating the motion to dismiss.

       {¶16} “A guilty plea represents a break in the chain of events that preceded it in the

criminal process, such that a defendant cannot then challenge the propriety of any action taken

by a trial court or trial counsel prior to that point in the proceedings unless it affected the

knowing and voluntary character of the plea.” (Internal quotations and citations omitted.) State

v. Allen, 9th Dist. Summit Nos. 27494, 28213, 2017-Ohio-2831, ¶ 37. This Court and others

have thus concluded that ineffective assistance of counsel arguments that do not relate to the

voluntary and knowing character of the defendant’s plea, and involve errors that occurred prior

to the plea, are waived by a guilty plea. See id. at ¶ 37-38; State v. Kelly, 7th Dist. Columbiana

No. 08 CO 23, 2009-Ohio-1509, ¶ 10-11 (concluding that an ineffective assistance argument

related to double jeopardy was waived by a guilty plea). However, even if we were to consider

the merits of Emich’s argument, we would overrule it.

       {¶17} In order to prevail on a claim of ineffective assistance of counsel, Emich must

show that his “counsel’s performance fell below an objective standard of reasonableness and that

prejudice arose from counsel’s performance.” State v. Reynolds, 80 Ohio St.3d 670, 674 (1998),

citing Strickland v. Washington, 466 U.S. 668, 687 (1984). “The benchmark for judging any

claim of ineffectiveness must be whether counsel’s conduct so undermined the proper

functioning of the adversarial process that the trial cannot be relied on as having produced a just
                                                  7


result.” Strickland at 686. Thus, a two-prong test is necessary to examine such claims. First,

Emich must show that counsel’s performance was objectively deficient by producing evidence

that counsel acted unreasonably. State v. Keith, 79 Ohio St.3d 514, 534 (1997), citing Strickland

at 687. Second, Emich must demonstrate that but for counsel’s errors, there is a reasonable

probability that the results of his trial would have been different. Keith at 534.

       {¶18} Here, Emich argues it was unreasonable for his trial counsel to fail to submit more

substantial evidence to support his motion to dismiss. However, even if that were true, the

evidence that Emich believes should have been submitted is not in the record and is not properly

before this Court. For example, we do not know whether the charging instrument and judgment

of conviction from the municipal court would support Emich’s claims as they are not part of this

Court’s record.    “This Court is confined to the record on appeal and may not engage in

assumptions to sustain an ineffective assistance of counsel argument.” State v. Zeber, 9th Dist.

Summit No. 28481, 2017-Ohio-8987, ¶ 8, quoting State v. Higgins, 9th Dist. Summit No. 26120,

2012-Ohio-5650, ¶ 9. “When allegations of the ineffectiveness of counsel are premised on

evidence outside the record, * * * the proper mechanism for relief is through the post-conviction

remedies of R.C. 2953.21, rather than through a direct appeal.” Zeber at ¶ 8. Given the

foregoing, Emich has not demonstrated that trial counsel was ineffective. See id.

       {¶19} Emich’s first assignment of error is overruled.

                                                 III.

       {¶20} Emich’s assignments of error are overruled. The judgment of the Medina County

Court of Common Pleas is affirmed.

                                                                                 Judgment affirmed.
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       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     DONNA J. CARR
                                                     FOR THE COURT



HENSAL, P. J.
CALLAHAN, J.
CONCUR.


APPEARANCES:

MATTHEW B. AMEER, Attorney at Law, for Appellant.

S. FORREST THOMPSON, Prosecuting Attorney, and VINCENT V. VIGLUICCI and
LAUREN M. HASE, Assistant Prosecuting Attorneys, for Appellee.
