[Cite as State v. Craig, 2017-Ohio-8962.]



                           IN THE COURT OF APPEALS
                 FIRST APPELLATE DISTRICT OF OHIO
                            HAMILTON COUNTY, OHIO




STATE OF OHIO,                              :   APPEAL NO. C-160816
                                                TRIAL NO. B-1504585
      Plaintiff-Appellee,                   :

  vs.                                       :      O P I N I O N.

STEVEN ALLEN CRAIG,                         :

      Defendant-Appellant.                  :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Appeal Dismissed

Date of Judgment Entry on Appeal: December 13, 2017



Joseph T. Deters, Hamilton County Prosecuting Attorney, and Judith Anton Lapp,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and David Hoffman,
Assistant Public Defender, for Defendant-Appellant.
                   OHIO FIRST DISTRICT COURT OF APPEALS



MYERS, Judge.

         {¶1}   In this opinion, we address an issue that was not addressed by the

Supreme Court of Ohio in its recent decision in State v. Jackson, ___ Ohio St.3d

___, 2017-Ohio-7469, ___ N.E.3d ___, that is, whether, in a criminal action

involving a multicount indictment, the trial court’s failure to dispose of a count on

which the jury fails to reach a verdict prevents the judgment of conviction on the

other counts from being final and appealable.         We answer the question in the

affirmative.

         {¶2}   In this case, Steven Allen Craig was indicted on one count of rape and

two counts of felonious assault. Craig pleaded not guilty to all counts, and the case

proceeded to a jury trial. The jury returned guilty verdicts on the felonious-assault

counts, but was unable to reach a verdict on the rape count.            The trial court

sentenced Craig on the felonious-assault counts and declared a mistrial on the rape

count.    The rape charge was not dismissed and remains pending.           This appeal

followed.

         {¶3}   Our jurisdiction is limited to the review of final orders and judgments.

Ohio Constitution, Article IV, Section 3(B)(2); R.C. 2505.03.         In Jackson, the

Supreme Court of Ohio held that a dismissal without prejudice of a count in a

multicount indictment does not prevent the judgment of conviction on the remaining

counts from being a final, appealable order. Jackson at ¶ 9. The court further held

that “a judgment of conviction is a final, appealable order if it complies with Crim.R.

32(C) and State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142, ¶

14, and that counts that are dismissed are resolved and do not prevent the judgment

of conviction from being final and appealable.” (Emphasis added.) Id.

         {¶4}   In Jackson, the defendant was convicted after a jury trial of some, but

not all, of the counts in the indictment. The jury was unable to reach a verdict on two




                                            2
                  OHIO FIRST DISTRICT COURT OF APPEALS



counts of kidnapping, but found the defendant guilty of grand theft and aggravated

robbery. The trial court imposed sentence on the theft and robbery counts, and

declared a mistrial on the kidnapping counts. On the state’s motion, the court

dismissed the kidnapping counts without prejudice. On appeal, the Eighth District

held that the dismissal without prejudice rendered the judgment a nonfinal order,

and sua sponte dismissed Jackson’s appeal for lack of a final, appealable order. State

v. Jackson, 8th Dist. Cuyahoga No. 103035, 2016-Ohio-704, ¶ 14.

        {¶5}   The Supreme Court reversed, holding that a dismissal without

prejudice of a count in a multicount indictment does not prevent the judgment of

conviction on the remaining counts from being a final, appealable order where the

judgment complied with Crim.R. 32(C) and Lester at ¶ 14. Jackson, ___ Ohio St.3d

___, 2017-Ohio-7469, ___ N.E.3d ___, at ¶ 9, 16. The court noted that a valid

judgment of conviction requires a full resolution of all counts for which there were

convictions, but does not “ ‘require a reiteration of those counts and specifications

for which there were no convictions, but were resolved in other ways, such as

dismissals, nolled counts, or not guilty findings.’ ” (Emphasis sic.)     Id. at ¶ 11,

quoting State ex rel. Davis v. Cuyahoga Cty. Court of Common Pleas, 127 Ohio St.3d

29, 2010-Ohio-4728, 936 N.E.2d 41, ¶ 2.        The court held that counts that are

dismissed are resolved and, therefore, do not prevent a judgment of conviction from

being final and appealable. Id. at ¶ 9-10. And it concluded that “[t]he prosecution of

the kidnapping counts terminated once the trial court dismissed those counts.” Id. at

¶ 16.

        {¶6}   The court in Jackson noted that allowing a dismissal without prejudice

to prevent an order in a criminal action from being a final, appealable order would

effectively stay appellate review of convictions on charges for which the defendant

had been found guilty and sentenced until the state either sought a new indictment

or the statute of limitations for the dismissed counts expired. Id. at ¶ 15. As this


                                          3
                  OHIO FIRST DISTRICT COURT OF APPEALS



court has explained, “A conditional dismissal in a criminal matter would allow a

prosecutor to keep a defendant perpetually indicted, without any idea concerning, or

control over, when the matter would be resolved.” State ex rel. Flynt v. Dinkelacker,

156 Ohio App.3d 595, 2004-Ohio-1695, 807 N.E.2d 967, ¶ 15 (1st Dist.).

       {¶7}    Here, like Jackson, the trial court declared a mistrial on a count upon

which the jury could not reach a verdict and sentenced the defendant on the counts

upon which the jury returned guilty verdicts. Unlike Jackson, however, this charge

remains pending. It has not been dismissed or otherwise resolved in any way. The

granting of a mistrial “has long been held not to be a final appealable order ‘for the

basic reason that it is not a judgment or order in favor of either of the parties which

gives finality to the case.’ ” State v. Nixon, 5th Dist. Richland No. 2016 CA 0008,

2017-Ohio-8, ¶ 16, quoting Mack v. Gulf Oil Co., Inc., 10th Dist. Franklin No. 76AP-

299, 1976 WL 190161 (Aug. 24, 1976), citing Kauffman v. Schauer, 121 Ohio St. 478,

169 N.E. 566 (1929). Here, the trial court’s granting of a mistrial on the rape count

did not resolve that count, and therefore, prevented the court’s judgment from being

a final, appealable order.

       {¶8}    A long line of cases from Ohio courts, including this one, have held

that an order in a criminal case is not final where the trial court fails to dispose of all

the charges that are brought against the defendant in an action. See State v. Pippin,

1st Dist. Hamilton No. C-150061, 2016-Ohio-312, ¶ 5, citing State ex rel. McIntyre v.

Summit Cty. Court of Common Pleas, 144 Ohio St.3d 589, 2015-Ohio-5343, 45

N.E.3d 1003, ¶ 4, 9-10 (plurality opinion); State v. Pace, 1st Dist. Hamilton No. C-

970546, 1998 WL 293850 (June 5, 1998); State v. Allman, 2d Dist. Montgomery No.

24693, 2012-Ohio-413; State v. Gillian, 4th Dist. Gallia No. 15CA3, 2016-Ohio-3232;

State v. Huntsman, 5th Dist. Stark No. 1999-CA-00282, 2000 WL 330013 (Mar. 13,

2000); State v. Ocasio, 8th Dist. Cuyahoga No. 103972, 2017-Ohio-88; State v.

Heavilin, 9th Dist. Medina No. 15CA0034-M, 2016-Ohio-1284; State v. Garner, 11th


                                            4
                    OHIO FIRST DISTRICT COURT OF APPEALS



Dist. Trumbull No. 2002-T-0025, 2003-Ohio-5222. Jackson did not alter this law,

but rather explained that a dismissed charge resolves the matter, even if it is

dismissed without prejudice.

          {¶9}   Recently, this court in State v. Pippin, dismissed an appeal for lack of

jurisdiction. We stated, “Importantly, however, the trial court neglected to dispose of

four other charges against Mr. Pippin. A long line of authority tells us that a trial

court’s entry is not a ‘final order’ where the court fails to dispose of all the charges in

an action against a criminal defendant.” Pippin at ¶ 1. We recognized that “[a]

‘hanging charge’ prevents the conviction from being a final order under R.C.

2505.02(B) because it does not determine the action, i.e., resolve the case.” Id. at ¶

6, quoting State v. Johnson, 4th Dist. Scioto No. 14CA3660, 2015-Ohio-3370.

Finally, we stated, “A number of courts, including this one, have held that a court

fails to comply with its mandatory duty under Crim.R. 32(C) when it leaves a charge

unresolved, and that because of this failure such a judgment is not a final order.” Id.

at ¶ 7.

          {¶10} We find that Jackson does not alter this conclusion. We join other
Ohio courts that have held that in a criminal case involving a multicount indictment,

a trial court’s order that fails to dispose of a count on which the jury failed to reach a

verdict is not a final, appealable order. See State v. Purdin, 4th Dist. Adams No.

11CA909, 2012-Ohio-752; State v. Sherman, 5th Dist. Richland No. 2011-CA-0012,

2011-Ohio-5794; State v. Bourdess, 8th Dist. Cuyahoga No. 70541, 1997 WL 284777

(May 29, 1997); State v. Sims, 8th Dist. Cuyahoga No. 85608, 2005-Ohio-5846, fn. 1;

State v. Clay, 11th Dist. Trumbull No. 2009-T-0126, 2010-Ohio-4558; see also

McIntyre at ¶ 4, 9-10. This result is entirely consistent with the Supreme Court’s

decision in Jackson and established Ohio law.

          {¶11} Moreover, the concern expressed in Jackson that the state might allow
a defendant to languish without appellate review of his conviction is not present


                                             5
                 OHIO FIRST DISTRICT COURT OF APPEALS



where a count remains pending following the declaration of a mistrial upon the jury’s

inability to reach a verdict on the count. Constitutional speedy-trial standards of

reasonableness apply to a retrial following a mistrial because of a hung jury. State v.

Fanning, 1 Ohio St.3d 19, 20-21, 437 N.E.2d 583 (1982); see State v. Echols, 146

Ohio App.3d 81, 91, 765 N.E.2d 379 (1st Dist.2001). These standards balance the

conduct of the state and that of the defendant by considering the length of delay, the

reasons for the delay, whether the defendant has asserted her or his speedy-trial

rights, and any resulting prejudice. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33

L.Ed.2d 101 (1972); Echols at 91. Therefore, the defendant’s rights are protected, and

he must be brought to trial within a reasonable time.

       {¶12} In this case, the trial court’s failure to dispose of the rape count upon
which the jury failed to reach a verdict prevented the judgment of conviction on the

other counts from being a final, appealable order. Without a final order, we lack

jurisdiction. Therefore, we dismiss the appeal.

                                                                    Appeal dismissed.


MOCK, P.J., concurs.
MILLER, J., concurs separately.

MILLER, J., separately concurring.


       {¶13} The majority opinion accurately cites and follows established
precedent from Ohio appellate courts prohibiting a convicted criminal defendant

from appealing while other charges remain pending. The rule sometimes results, as

it does here, in the defendant being sent to prison, but not being permitted to appeal

the convictions for which he is serving time. A particularly egregious example of

such a scenario had a defendant serve over 14 years before the Supreme Court of

Ohio ordered the trial court to resolve the “hanging charge.”       See State ex rel.

McIntyre v. Summit Cty. Court of Common Pleas, 144 Ohio St.3d 589, 2015-Ohio-


                                          6
                  OHIO FIRST DISTRICT COURT OF APPEALS



5343, 45 N.E.3d 1003. Because I believe Craig’s due-process rights are implicated,

this case requires further analysis.

       {¶14} I have previously expressed concerns regarding systemic issues that
can harm a defendant’s right to meaningful appellate review. State v. McKenna, 1st

Dist. Hamilton No. C-160683, 2017-Ohio-6986, ¶ 12 (Miller, J., concurring) (opining

that the “single document rule” may prejudicially hinder a defendant’s right to

appeal), citing Pollard v. United States, 352 U.S. 354, 361, 77 S.Ct. 481, 1 L.Ed.2d

393 (1957); United States v. Gould, 672 F.3d 930, 936 (10th Cir.2012); Harris v.

Champion, 15 F.3d 1538, 1558 (10th Cir.1994); Rhueark v. Shaw, 628 F.2d 297, 302-

303 (5th Cir.1980). I am similarly concerned here.

       {¶15} “[T]he Due Process Clause does provide some minimum guarantee of a
prompt appeal to [criminal] defendants.” United States v. Smith, 94 F.3d 204, 205

(6th Cir.1996). The relevant test has been borrowed from “the speedy trial analysis

set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).” Id.

at 207. The four factors to balance are “length of delay, the reason for the delay, the

defendant’s assertion of his right, and prejudice to the defendant.” Id. With respect

to appellate delay, the prejudice factor encompasses “three parallel interests: (1)

prevention of oppressive incarceration pending appeal; (2) minimization of anxiety

and concern of those convicted awaiting the outcome of their appeals; and (3)

limitation of the possibility that a convicted person’s grounds for appeal, and his or

her defenses in case of reversal and retrial, might be impaired.”       (Citation and

quotation omitted.) Id.

       {¶16} The first factor, length of delay, is applied on a case-by-case basis. Id.
at 209.   There is a general agreement that a delay of more than one year is

presumptively prejudicial to a defendant. United States v. Westcott, S.D.Ohio No.

3:06-po-097, 2014 WL 5513514 (Oct. 31, 2014); see State v. Echols, 146 Ohio App.3d

81, 91, 765 N.E.2d 379 (1st Dist.2001). In this case, the jury verdict was entered on


                                          7
                  OHIO FIRST DISTRICT COURT OF APPEALS



September 9, 2016. Craig was sentenced and remanded to the Ohio Department of

Rehabilitation and Correction on October 11, 2016. It has been over one year since

these convictions, and Craig cannot appeal due to the “hanging charge.” This length

of delay weighs in favor of Craig and triggers further inquiry. Westcott at *2.

       {¶17} The reason for the delay is the second factor. Here, every continuance
for the retrial has been at Craig’s request, and Craig has waived the computation of

time. This factor weighs decisively against Craig. Craig has voluntarily delayed his

retrial on the “hanging charge” while pursuing his appeal. Had he instead insisted

on the retrial occurring timely, he likely would have been retried by now, and

possibly would have a final order from which to appeal. His waiver applies to his

due-process right to a prompt appeal. Accordingly, his due-process rights have not

been violated. There is no occasion to visit the remaining factors.

       {¶18} Having conducted the Smith analysis, I concur with the result.

       {¶19} I, nevertheless, wish to express the unfortunateness of the result. Both
the defendant and the state want this appeal to be heard. In the context of this case,

judicial economy would be better served by affording an opportunity to appeal. As

the law exists now, there could be two trials before there is an appeal, perhaps a

remand for a new trial if there was error in the initial convictions, potentially

followed by a third trial and second appeal. If this appeal was allowed to go forward,

then any error that might have occurred below could be avoided at the second trial—

not a third. The judicial economy of the current system further decreases if there are

additional hung juries. Moreover, the appetite of the parties for a retrial on the

“hanging charge” might be satiated by resolution of this appeal. If we were to affirm

the current convictions, then maybe the parties would decide to resolve the hanging

charge by agreement.

       {¶20} The Commission on the Rules of Practice and Procedure should
consider whether the Rules of Criminal Procedure should be amended to include a


                                           8
                  OHIO FIRST DISTRICT COURT OF APPEALS



provision equivalent to Civ.R. 54(B), which affords the ability to appeal the

resolution of some claims. This would afford the parties and the trial court the

discretion to permit appeals from final judgments of conviction when there are

“hanging charges” as the circumstances may demand.



Please note:

       The court has recorded its own entry on the date of the release of this opinion.




                                             9
