[Cite as State v. Hartman, 2017-Ohio-1089.]


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

STATE OF OHIO                                        C.A. No.      15CA0090-M

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
MATHEW J. HARTMAN                                    COURT OF COMMON PLEAS
                                                     COUNTY OF MEDINA, OHIO
        Appellant                                    CASE No.   09CR0229

                                DECISION AND JOURNAL ENTRY

Dated: March 27, 2017



        SCHAFER, Presiding Judge.

        {¶1}    Defendant-Appellant, Matthew J. Hartman, appeals the judgment of the Medina

County Court of Common Pleas denying his two separate motions to dismiss. For the reasons

set forth below, we dismiss part of Hartman’s appeal and affirm the trial court’s judgment.

                                                I.

        {¶2}    On June 2, 2009, the Medina County Grand Jury indicted Hartman on one count

of aggravated burglary in violation of R.C. 2911.11(A)(2), a first-degree felony. Hartman filed a

suppression motion, which the trial court orally denied following a hearing on the matter. A jury

ultimately found Hartman guilty of the sole offense contained in the indictment and the trial

court thereafter sentenced him to five years in prison. Hartman appealed, and this Court reversed

his conviction after concluding that the trial court erroneously permitted the jury to hear an

unredacted recording of the 911 call, which contained prejudicial hearsay statements. See State
                                                  2


v. Hartman, 9th Dist. Medina Nos. 10CA0026-M, 10CA0031-M, 2012-Ohio-745, ¶ 29 (Hartman

I).

       {¶3}    The State elected to retry Hartman. Prior to the second trial, the judge from

Hartman’s first trial recused himself and a new judge was assigned to the case. The jury again

found Hartman guilty of aggravated burglary following the second trial and the trial court again

sentenced Hartman to five years in prison. Hartman appealed and this Court reversed Hartman’s

conviction after determining that he was denied his constitutional right to a fair trial because of

prosecutorial misconduct. See State v. Hartman, 9th Dist. Medina No. 12CA0057-M, 2013-

Ohio-4407, ¶ 15 (Hartman II). Specifically, this Court concluded that the prosecutor’s remarks

during its initial closing argument and during rebuttal were improper and prejudicially affected

Hartman’s substantial rights. Id. at ¶ 25. In so holding, one judge explicitly admonished the

prosecuting attorneys that they were “much too personally invested in this case to be objective”

and hoped the Medina County Prosecutor’s Office would consider reassigning the case for any

retrial. Id. at ¶ 37 (Moore, J., concurring).

       {¶4}    While Hartman’s appeal from his second trial was pending, Hartman’s mother

filed a petition for post-conviction relief on his behalf. On February 20, 2014, the trial court

denied the petition on the basis that it was not properly before the court due to the fact that it was

filed by his mother, a non-attorney. This Court subsequently affirmed the trial court’s denial of

Hartman’s petition, concluding that it was proper for the trial court to refrain from entertaining

the merits of the petition. See State v. Hartman, 9th Dist. Medina No. 13CA0018-M, 2014-

Ohio-2226, ¶ 7-8 (Hartman III).

       {¶5}    On May 16, 2014, the Medina County Prosecutor filed a motion requesting that

the trial court appoint the Cuyahoga County Prosecutor as a special prosecutor in this case. The
                                                   3


trial court ultimately granted that motion. Thereafter, the trial judge recused himself and the

Supreme Court of Ohio subsequently assigned a third judge to the case.

       {¶6}    During the pretrial process, Hartman filed several motions. As relevant to this

appeal, Hartman filed a motion to dismiss the case with prejudice on grounds that “the State’s

previous prosecuting attorneys and the prior trial courts * * * deliberately and willfully engaged

in egregious misconduct, driven by bad faith.” Specifically, Hartman contends that “the State

and the trial courts have twice denied [him] his constitutional guarantees and denied him fair

trials.” The State filed a brief in opposition to Hartman’s motion to dismiss, to which Hartman

filed a reply brief in support of his motion to dismiss. Hartman also filed two suppression

motions, both of which the State opposed. Lastly, Hartman filed a “motion to enforce his Fifth

Amendment protections under the Double Jeopardy Clause,” wherein he argues that the case

should be dismissed with prejudice since the State failed to meet its burden of production in both

the first and second trial. The State opposed this motion as well. On October 23, 2015, the trial

court denied Hartman’s motion to dismiss, “motion to enforce his Fifth Amendment protections

under the Double Jeopardy Clause,” and motions to suppress. Specifically, the trial court

concluded that res judicata and the law-of-the-case doctrine prevented it from reconsidering the

issues raised in Hartman’s various motions either because this Court had previously ruled on

those issues in Hartman I and Hartman II, or because Hartman had the ability to raise those

issues in his prior appeals but failed to do so.

       {¶7}    Hartman filed this timely interlocutory appeal and raises three assignments of

error for this Court’s review.
                                                4


                                               II.

                                     Assignment of Error I

       The trial court erred by denying Mr. Hartman’s motion to dismiss, with
       prejudice, on grounds of prosecutorial and judicial misconduct, where Mr.
       Hartman presented substantial and compelling evidence of a pattern of
       misconduct, and the State failed to rebut that proof.

       {¶8}    In his first assignment of error, Hartman argues that the trial court erred by

denying his motion to dismiss based on prosecutorial and judicial misconduct.

                                      A. Standard of Review

       {¶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. Anderson, 148 Ohio St.3d 74,

2016-Ohio-5791, ¶ 20 (Anderson II).

                                          B. Jurisdiction

       {¶10} This Court initially questions its jurisdiction to consider this assignment of error

since this Court has jurisdiction only to hear an appeal taken from a judgment or final,

appealable order. Ohio Constitution, Article IV, Section 3(B)(2); R.C. 2501.02. In the absence

of a final, appealable order, this Court must dismiss the appeal for lack of subject matter

jurisdiction. Brown v. ManorCare Health Servs., 9th Dist. Summit No. 27412, 2015-Ohio-857, ¶

7, citing Lava Landscaping, Inc. v. Rayco Mfg., Inc., 9th Dist. Medina No. 2930-M, 2000 WL

109108 (Jan. 26, 2000).

       {¶11} “Generally, a denial of a motion to dismiss in a criminal or civil case is not

considered a final appealable order because the case will proceed to trial. If an adverse judgment

is rendered, the denial of the motion to dismiss may be an assignment of error on [direct]

appeal.”   In re S.H., 5th Dist. Guernsey No. 10CA000023, 2010-Ohio-5741, ¶ 19, citing

Lakewood v. Pfeifer, 83 Ohio App.3d 47, 50 (8th Dist.1992), citing State v. Eberhardt, 56 Ohio
                                                5


App.2d 193, 197-198 (8th Dist.1978). However, the Supreme Court of Ohio “has carved out a

narrow exception to this rule where the criminal defendant asserts that he or she has previously

been placed in jeopardy for the offense that is the subject of the new indictment.” State v.

Mitchell, 8th Dist. Cuyahoga No. 104314, 2017-Ohio-94, ¶ 12, fn. 2, citing State v. Anderson,

138 Ohio St.3d 264, 2014-Ohio-542, ¶ 61 (Anderson I) (“[A]n order denying a motion to dismiss

on double-jeopardy grounds is a final, appealable order.”). Thus, this Court’s review of a trial

court’s denial of a criminal defendant’s motion to dismiss is strictly limited to the double

jeopardy issue(s) raised therein.

       {¶12} In this case, Hartman filed two separate motions to dismiss following this Court’s

decisions in Hartman II and Hartman III. The first motion to dismiss was based on prosecutorial

and judicial misconduct, whereas the second motion to dismiss was based on the Double

Jeopardy Clause of the Fifth Amendment to the United States Constitution. Hartman’s first

assignment of error concerns his first motion to dismiss.

       {¶13} Within his 69-page “motion to dismiss, with prejudice, on grounds of

prosecutorial and judicial bad faith and misconduct,” Hartman alleges approximately 17

instances during his first and second trial where the State and/or the respective trial judges

“deliberately and willfully engaged in egregious misconduct, driven by bad faith.” We note that

many of Hartman’s prosecutorial and judicial misconduct arguments are not double jeopardy

claims and, thus, exceed the narrow scope of Anderson I. As such, we conclude that this Court is

without jurisdiction to consider many of the arguments raised in Hartman’s first motion to

dismiss since Hartman is able to raise these non-double jeopardy related arguments on direct

appeal. Accordingly, we confine our analysis of Hartman’s first assignment of error strictly to

the double jeopardy arguments contained in Hartman’s first motion to dismiss.
                                                    6


             C. The Trial Court Properly Denied Hartman’s First Motion to Dismiss

        {¶14} To the extent that Hartman does raise a double jeopardy argument in his first

motion to dismiss, he contends that the Double Jeopardy Clause bars retrials where bad faith

conduct by a judge or prosecutor threatens to harass a defendant by means of successive criminal

prosecutions.    Specifically, Hartman cites to State v. Daugherty, 41 Ohio App.3d 91 (5th

Dist.1987), wherein the Fifth District Court of Appeals determined that, under the facts of that

specific case, the “accused ha[d] been sufficiently harassed by unlawful government procedure

as to invoke the prohibition against unwarranted successive prosecutions within the meaning of

the Double Jeopardy Clauses of the federal and state Constitutions.” Id. at 94, citing United

States v. Dinitz, 424 U.S. 600 (1976) (holding that the Double Jeopardy Clause bars retrials

where bad-faith conduct by a judge or prosecutor threatens to harass a defendant by means of

successive prosecutions or a declaration of a mistrial so as to afford the prosecution a more

favorable opportunity to convict).

        {¶15} We determine that Hartman’s reliance upon Daugherty and Dinitz is misplaced as

those cases are distinguishable from the present case.     In Daugherty, the court of appeals

reversed the defendant’s conviction for driving under the influence after concluding that the

defendant was entitled to a mistrial. Specifically, the Daugherty court determined that the

Double Jeopardy Clause barred retrial since the defendant had “been sufficiently harassed by

unlawful government procedure” where the prosecutor told the jury that evidence existed

proving the defendant was not credible, but subsequently failed to introduce such evidence either

at trial or at the post-trial hearing on the matter. Id.

        {¶16} Dinitz, on the other hand, involved a scenario where a criminal defendant moved

to dismiss an indictment on double jeopardy grounds following the declaration of a mistrial in
                                                7


his first trial, but prior to the successive trial. Dinitz at 604-605. Although the United States

Supreme Court ultimately concluded that retrial did not violate Dinitz’s constitutional rights, it

did hold that the Double Jeopardy Clause protects “a defendant against governmental actions

intended to provoke mistrial requests and thereby subject defendants to the substantial burdens

imposed by multiple prosecutions.” Id. at 611-612.

       {¶17} Here, however, the trial court did not declare a mistrial in either of Hartman’s first

two trials, nor did this Court determine that Hartman was entitled to a mistrial in Hartman I or

Hartman II. Rather, a jury found Hartman guilty of aggravated burglary in both trials and this

Court subsequently reversed those convictions on direct appeal. The Supreme Court of Ohio has

explicitly “refuse[d] to equate, for the purpose of invoking the Double Jeopardy Clause, a

declaration of a mistrial to a reversal on appeal.” State v. Liberatore, 69 Ohio St.2d 583, 590-

591 (1982), citing United States v. Jorn, 400 U.S. 470, 484 (1971). Moreover, the distinction

between reprosecution after an appeal and reprosecution after a mistrial declaration is not

negated merely because the prosecutorial misconduct that occurred in Hartman’s second trial

could have been grounds for a mistrial. See id. at 591. This is particularly true in this case

because the State did not engage in impermissible closing arguments in order to goad Hartman

into requesting a mistrial or to prejudice Hartman’s prospects for an acquittal. See id., citing

Dinitz at 611.

       {¶18} Moreover, the Supreme Court of Ohio has held that “‘[i]t is a “venerable

principl[e] of double jeopardy jurisprudence” that “[t]he successful appeal of a judgment of

conviction, on any ground other than the insufficiency of the evidence to support the verdict, * *

* poses no bar to further prosecution on the same charge.”’” State v. Tillman, 119 Ohio App.3d

449, 458 (9th Dist.1997), quoting Montana v. Hall, 481 U.S. 400, 402 (1987), quoting United
                                                 8


States v. Scott, 437 U.S. 82, 90-91 (1978). “A reversal of a judgment in a criminal case merely

places the state and the defendant in the same position as they were in before trial.” Liberatore

at 591. In this case, Hartman’s conviction in both of the first two trials was not reversed based

upon insufficient evidence. Thus, having determined that Hartman’s reliance on Daugherty and

Dinitz is misplaced, we conclude that the trial court did not err by denying Hartman’s first

motion to dismiss on the basis of judicial and prosecutorial misconduct.

       {¶19} Accordingly, the double jeopardy arguments raised within Hartman’s first

assignment of error are overruled. Hartman’s remaining arguments are dismissed.

                                     Assignment of Error II

       The trial court erred by denying Mr. Hartman’s Double Jeopardy motion,
       where the State failed to prove essential elements of the charged crime
       during the first and second trials, thereby barring the State from a third trial
       on the same one-count indictment.

       {¶20} In his second assignment of error, Hartman argues that the trial court erred by

denying his “motion to bar successive prosecution of the Defendant in violation of the Fifth

Amendment’s Double Jeopardy Clause.” Specifically, Hartman contends that the trial court

erred by denying his second motion to dismiss since the State failed to meet its burden of

production in either of the first two trials. We, however, decline to address the merits of

Hartman’s assignment of error since it is precluded by the doctrine of res judicata.

                                       A. Standard of Review

       {¶21} We again note that appellate courts apply a de novo standard of review when

reviewing the denial of a motion to dismiss an indictment on the ground of double jeopardy.

Anderson II, 148 Ohio St.3d 74, 2016-Ohio-5791, at ¶ 20.

                                         B. Law & Analysis
                                                9


       {¶22} The Double Jeopardy Clause of the Fifth Amendment to the United States

Constitution, as applied to the states by the Fourteenth Amendment, Benton v. Maryland, 395

U.S. 784, 787 (1969), states “nor shall any person be subject for the same offence or be twice put

in jeopardy of life or limb[.]” Section 10, Article I of the Ohio Constitution contains a similar

prohibition, which is coextensive with the federal constitutional protection. State v. Resor, 6th

Dist. Huron No. H-08-028, 2010-Ohio-397, ¶ 11, citing State v. Brewer, 121 Ohio St.3d 202,

2009-Ohio-593, ¶ 14.     “The [Double Jeopardy Clause] provides protection from a second

prosecution for the same offense after an acquittal, protection against a second prosecution after

a conviction and protection against multiple punishments for the same offense.” Resor at ¶ 11,

citing United States v. DiFrancesco, 449 U.S. 117, 129 (1980) and North Carolina v. Pearce,

395 U.S. 711, 717 (1969). As this Court stated previously:

       “While the Double Jeopardy Clause protects a defendant from successive
       prosecutions for a single offense, society also has an interest in affording the
       prosecutor one full and fair opportunity to present his evidence to an impartial
       jury.” (Internal quotations and citation omitted.) Brewer at ¶ 16. Thus, “the
       United States Supreme Court has long recognized that double jeopardy will not
       bar retrial of a defendant who successfully overturns his conviction on the basis of
       trial error, through either direct appeal or collateral attack.” Id. However, the
       Double Jeopardy Clause does bar “retrial when an appellate court reverses a
       conviction based solely upon the sufficiency of the evidence * * * [because] such
       a reversal is the equivalent of a judgment of acquittal, which affords the defendant
       absolute immunity from further prosecution for the same offense.” Id. at ¶ 18.

Hartman II, 2013-Ohio-4407, at ¶ 9.

       {¶23} In his second motion to dismiss, Hartman argues that it would be violative of the

Double Jeopardy Clause of the Fifth Amendment to the United States Constitution to be tried a

third time for aggravated burglary since the State failed to present sufficient evidence on a

number of material elements in both the first and second trial. However, pursuant to the doctrine

of res judicata, a valid final judgment on the merits bars all subsequent actions based on any
                                                10


claim arising out of the transaction or occurrence that was the subject matter of the previous

action. Grava v. Parkman Twp., 73 Ohio St.3d 379, 382 (1995). Res judicata applies to any

issue that was raised or could have been raised in a criminal defendant’s prior appeal from his

conviction. State v. Perry, 10 Ohio St.2d 175, 180 (1967). “[T]he doctrine serves to preclude a

defendant who has had his day in court from seeking a second on that same issue. In so doing,

res judicata promotes the principles of finality and judicial economy by preventing endless

relitigation of an issue on which a defendant has already received a full and fair opportunity to be

heard.” State v. Saxon, 109 Ohio St.3d 176, 2006–Ohio–1245, ¶ 18.

       {¶24} A review of the record in this matter indicates that Hartman did not challenge the

sufficiency of the State’s evidence on direct appeal following his first trial. See Hartman I,

2012-Ohio-745 (reversing conviction due to the admission of prejudicial hearsay evidence).

Additionally, the record indicates that although Hartman did challenge the sufficiency of the

State’s evidence on direct appeal following his second trial, this Court explicitly concluded that

the State met its burden of production in the second trial. See Hartman II at ¶ 29-31. Thus,

because Hartman had the opportunity to raise the issue concerning the sufficiency of the State’s

evidence in his first appeal, and did raise this issue in his second appeal, we conclude that the

doctrine of res judicata bars Hartman from raising this issue again.

       {¶25} Hartman’s second assignment of error is overruled.

                                    Assignment of Error III

       The deliberate altering of suppression hearing and trial transcripts voids any
       alleged “law of the case” obtained as a result of the permanently corrupted
       record.

       {¶26} In his third assignment of error, Hartman argues that this Court’s prior decisions

in Hartman I and Hartman II are voidable since the court reporter “filed a deliberately,
                                                   11


materially altered ‘official’ transcript of [his] first trial” with this Court, thus “forever tainting the

record in this litigation and depriving [him] of the protections accorded by the Ohio and United

States Constitutions.” Hartman further contends that since this Court’s decisions in Hartman I

and Hartman II were “obtained by fraud and collusion,” any purported law of the case or

application of res judicata in this matter is void.

        {¶27} This Court again questions its jurisdiction to consider this assignment of error

since our review of a trial court’s denial of a criminal defendant’s motion to dismiss is strictly

limited to the double jeopardy issue(s) raised therein. Although this jurisdictional issue was not

raised by the parties, this Court has an obligation to raise it sua sponte. See Whitaker-Merrell v.

Geupel Const. Co., 29 Ohio St.2d 184, 186 (1972).

        {¶28} Here, Hartman alleges that this Court’s decisions in Hartman I and Hartman II

are voidable due to being obtained by fraud and collusion, thus voiding any law of the case (and,

by extension, the application of the doctrine of res judicata) in the instant appeal. While we

acknowledge that this argument is tangentially related to Hartman’s second assignment of error

that was overruled on the basis of res judicata, we determine that the substance of this argument

exceeds the scope of our review at this juncture. Significant to our analysis is the fact that

Hartman does not make a double-jeopardy argument in this assignment of error. Accordingly,

because the arguments contained in Hartman’s third assignment of error exceed Anderson I’s

narrow scope and can be raised on direct appeal, we conclude that this Court is without

jurisdiction to consider this assignment of error at this time. See Anderson I at ¶ 53-59 (limiting

appellate review of a trial court’s denial of a motion to dismiss on double-jeopardy grounds to

the double-jeopardy issues raised therein since the defendant would not be afforded a meaningful

review of an adverse decision if forced to wait for final judgment as to all proceedings).
                                                12


       {¶29} Hartman’s third assignment of error is dismissed.

                                                III.

       {¶30} Hartman’s double jeopardy arguments raised within his first and second

assignments of error are overruled and the remainder of his assignments of error are dismissed.

The judgment of the Medina County Court of Common Pleas is affirmed.

                                                                         Appeal dismissed in part,
                                                                          And judgment affirmed.




       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.
                                        13


      Costs taxed to Appellant.




                                             JULIE A. SCHAFER
                                             FOR THE COURT



TEODOSIO, J.
CALLAHAN, J.
CONCUR.


APPEARANCES:

MARILYN A. CRAMER, Attorney at Law, for Appellant.

MICHAEL C. O’MALLEY, Prosecuting Attorney, and CHRISTOPHER D. SCHROEDER,
Assistant Prosecuting Attorney, for Appellee.
