         [Cite as State v. Lecky, 2014-Ohio-1527.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                       :   APPEAL NO. C-130445
                                                         TRIAL NO. B-1107956-A
        Plaintiff-Appellee,                          :
                                                             O P I N I O N.
  vs.                                                :

DELROY LECKY,                                        :

    Defendant-Appellant.                             :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: April 11, 2014


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


William R. Gallagher, for Defendant-Appellant.




Please note: this case has been removed from the accelerated calendar.
                      OHIO FIRST DISTRICT COURT OF APPEALS



D E W INE , Judge.

          {¶1}   This is an appeal from the denial of a motion to dismiss an indictment in

a criminal case. In the proceeding below, the defendant had been indicted on two sets of

charges: one set stemming from a search of the defendant’s car, the other from a search

of the defendant’s home. The trial court suppressed evidence relating to the home

search and the state attempted to appeal the suppression order. The state’s notice of

appeal was untimely, however, and this court granted a motion to dismiss. The state

then proceeded to prosecute the charges related to the automobile search.             The

defendant filed a motion to dismiss those counts, arguing that our dismissal of the

appeal from the suppression order barred the state from prosecuting the remaining

counts.

          {¶2}   We affirm the trial court’s denial of the motion to dismiss. The order

from which the state previously attempted to appeal dealt only with the home search.

Our order dismissing that appeal did not preclude the state from pursuing the other

charges in the indictment.

                                            I.

          {¶3}   Police stopped and searched a car driven by defendant-appellant Delroy

Lecky and found marijuana. Armed with that evidence and a utility bill found in the car,

the police obtained a warrant to search Mr. Lecky’s home. There, the police discovered

larger quantities of marijuana and a firearm. Mr. Lecky was indicted on five counts.

Counts 1 and 2 were for trafficking in and possession of the marijuana found in the car.

Counts 3, 4, and 5 were based on the evidence found in the home, and alleged trafficking

in and possession of marijuana and having a weapon under disability.

          {¶4}   Mr. Lecky moved to suppress the evidence recovered from his home,

arguing that the warrant was not based on probable cause. Mr. Lecky conceded that the



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search of his vehicle had been valid and, therefore, did not challenge that search in his

motion to suppress. The trial court determined that the affidavit for the search warrant

was insufficient to establish probable cause and granted the motion to suppress the

evidence recovered from Mr. Lecky’s home. The court issued a written entry which

provided: “For good cause shown the motion to suppress the search of the defendant’s

residence is hereby granted. The Court finds that the affidavit for the search warrant

was insufficient.” The state filed a notice of appeal from the judgment granting the

motion to suppress, attaching a copy of the written entry.

       {¶5}     The state’s right to appeal an adverse decision on a pretrial motion to

suppress is created by statute. R.C. 2945.67(A). Crim.R. 12(K) provides the procedure

for taking such an appeal, requiring the state to certify that (1) the appeal was not taken

for purposes of delay and (2) the ruling on the defendant’s motion rendered the state’s

proof so weak in its entirety that any reasonable probability of effective prosecution had

been destroyed.

       {¶6}     Crim.R. 12(K) provides that such an appeal “shall not be allowed unless

the notice of appeal and the certification * * * are filed with the clerk of the trial court

within seven days after the date of the entry of the judgment or order granting the

motion.” The state made the required Crim.R. 12(K) certification, but it missed the

seven-day deadline. It attempted to correct this deficiency by filing something that it

styled as a “motion for delayed appeal.” We denied the state’s motion for delayed appeal

and granted Mr. Lecky’s motion to dismiss. State v. Lecky, 1st Dist. Hamilton No. C-

130038 (April 19, 2013).

       {¶7}     Following our dismissal of the state’s appeal, the state returned to the

trial court to prosecute counts 1 and 2, which stemmed from the automobile search. Mr.

Lecky filed a motion to dismiss those counts. His motion was premised on the theory



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that because the state failed to include language in its Crim.R. 12(K) certification limiting

its appeal to counts 3, 4, and 5, the appeal necessarily included all the counts alleged in

the indictment. Under Crim.R. 12(K), “[i]f an appeal from an order suppressing or

excluding evidence pursuant to this division results in an affirmance of the trial court,

the state shall be barred from prosecuting the defendant for the same offense or

offenses[.]”

       {¶8}     The trial court denied the motion to dismiss on the grounds that the

suppression order had been limited to the evidence recovered from Mr. Lecky’s

residence. Mr. Lecky subsequently pleaded no contest to counts 1 and 2, and he now

appeals the trial court’s decision denying his motion to dismiss.

                                             II.

       {¶9}     In his sole assignment of error, Mr. Lecky makes the same argument

that he made below: that our dismissal of the prior appeal bars the state from any

further prosecution of the offenses for which he was indicted. The crux of the argument

is that because the state did not stipulate in its Crim.R. 12(K) certification the counts of

the indictment that it was attempting to appeal from, this court’s dismissal order bars

the state from prosecuting Mr. Lecky on any of the counts in the indictment. We are not

persuaded.

       {¶10}    Quite simply, we fail to see that Crim.R. 12(K) has any application to

counts 1 and 2. The relevant sentence of the rule provides as follows:

       If an appeal from an order suppressing or excluding evidence pursuant to

       this division results in an affirmance of the trial court, the state shall be

       barred from prosecuting the defendant for the same offense or offenses

       except upon a showing of newly discovered evidence that the state could




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       not, with reasonable diligence, have discovered before filing of the notice

       of appeal.

       {¶11}    As an initial matter, it is not immediately clear that this provision applies

at all in situations such as the one here where there was an attempt to appeal, but the

appeal was never timely perfected. But we need not reach that issue because even

assuming that the dismissal of an appeal as untimely constitutes “an affirmance of the

trial court” and acts as a bar to further prosecution under the rule, the bar is limited to

prosecutions for the “same offense or offenses.”

       {¶12}    In this case, the state made no attempt to appeal anything except the

suppression order relating to the search of the house. The notice of appeal, not the

Crim.R. 12(K) certification, delineates the matter appealed from. The suppression order,

which was identified as the subject of the appeal in the state’s notice, dealt only with the

search of the home. The search of the home, inarguably, related only to counts 3, 4, and

5 of the indictment. Thus, the only counts of the indictment implicated by the attempted

appeal to this court were counts 3, 4, and 5. Accordingly, Crim.R. 12(K) could not bar

prosecution for counts 1 and 2 because they were not the “same offenses” at issue in the

state’s dismissed appeal.

                                            III.

       {¶13}    We overrule the assignment of error and affirm the trial court’s decision

denying Mr. Lecky’s motion to dismiss.

                                                                       Judgment affirmed.

C UNNINGHAM , P.J., and F ISCHER , J., concur.


Please note:

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




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