[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Prade v. Ninth Dist. Court of Appeals, Slip Opinion No. 2017-Ohio-7651.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are requested to
      promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
      South Front Street, Columbus, Ohio 43215, of any typographical or other
      formal errors in the opinion, in order that corrections may be made before
      the opinion is published.



                          SLIP OPINION NO. 2017-OHIO-7651
   THE STATE EX REL. PRADE v. NINTH DISTRICT COURT OF APPEALS ET AL.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
       may be cited as State ex rel. Prade v. Ninth Dist. Court of Appeals,
                          Slip Opinion No. 2017-Ohio-7651.]
Prohibition—Criminal           procedure—R.C.           2945.67(A)        and      2953.23(B)
        unambiguously allow the state an absolute right to appeal a judgment
        granting postconviction relief—Respondents’ exercise of jurisdiction
        following the trial court’s judgment was not unauthorized by law—Writ
        denied.
   (No. 2016-0686—Submitted April 4, 2017—Decided September 20, 2017.)
                                      IN PROHIBITION.
                                    ________________
        Per Curiam.
        {¶ 1} In 1998, relator, Douglas Prade, was convicted of murdering his
former wife, Dr. Margo Prade. In January 2013, the Summit County Court of
Common Pleas determined, based on results from new DNA testing and other
                            SUPREME COURT OF OHIO




evidence, that Prade was actually innocent of the aggravated murder and granted
him postconviction relief under R.C. 2953.21. However, upon the state’s appeal
from the postconviction judgment, the Ninth District Court of Appeals reversed.
On remand, a new common pleas judge, Judge Christine Croce, reinstated Prade’s
aggravated-murder conviction and sentence.
       {¶ 2} In this original action, Prade requests a writ of prohibition to void
respondent the Ninth District Court of Appeals’ judgment in the state’s appeal of
the postconviction judgment, to void respondent Judge Croce’s subsequent orders
on remand, and to preclude the Ninth District from ruling on Prade’s direct appeal
of Judge Croce’s denial of his motion for a new trial.
       {¶ 3} We deny the writ of prohibition because R.C. 2945.67(A) and
2953.23(B) unambiguously allow the state an absolute right to appeal a judgment
granting postconviction relief, and therefore, respondents’ exercise of jurisdiction
following the trial court’s judgment was not unauthorized by law.
                                   Background
       {¶ 4} In 1998, Prade was convicted and sentenced to life in prison for the
1997 aggravated murder of his former wife, Dr. Margo Prade. The Ninth District
Court of Appeals affirmed Prade’s conviction on direct appeal. State v. Prade, 139
Ohio App.3d 676, 745 N.E.2d 475 (9th Dist.2000).
       {¶ 5} The physical evidence at Prade’s trial included a bite mark that the
killer made on Dr. Prade’s arm through her lab coat. Because there was a large
amount of Dr. Prade’s blood on the lab coat, the results of DNA tests performed on
cuttings taken from the area of the lab coat around the bite mark in 1998 were
inconclusive, showing only Dr. Prade’s DNA.
       {¶ 6} In 2008, Prade filed an application under R.C. 2953.71 et seq. for new
DNA testing of the lab coat, citing major advances in DNA testing since his trial.
The trial court denied Prade’s application, and the court of appeals affirmed.
However, this court reversed and remanded the case to the trial court. State v.




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                                January Term, 2017




Prade, 126 Ohio St.3d 27, 2010-Ohio-1842, 930 N.E.2d 287, ¶ 30. On remand, the
trial court ordered that Dr. Prade’s coat and other items be tested for DNA by two
labs, the DNA Diagnostics Center and the Ohio Bureau of Criminal Investigation.
       {¶ 7} In July 2012, Prade filed in the trial court a “petition for
postconviction relief * * * or in the alternative, motion for new trial,” to which he
attached the DNA results and additional evidence. On January 29, 2013, the court
granted Prade’s petition for postconviction relief. The court concluded:


       [T]he evidence that the Defendant presented in this case is clear and
       convincing. Based on the review of the conclusive Y-STR DNA
       test results and the evidence from the 1998 trial, the Court is firmly
       convinced that no reasonable juror would convict the Defendant for
       the crime of aggravated murder with a firearm. The Court concludes
       as a matter of law that the Defendant is actually innocent of
       aggravated murder. As such, the Court overturns the Defendant’s
       convictions for aggravated murder with a firearms [sic]
       specification, and he shall be discharged from prison forthwith. The
       Defendant’s Petition for Post-conviction relief is granted.


The trial court also stated, “In the alternative, should this Court’s order granting
post-conviction relief be overturned pursuant to appeal, then the Motion for New
Trial is granted.”
       {¶ 8} The state immediately filed a notice of appeal from the trial court’s
judgment. On March 19, 2014, the Ninth District Court of Appeals reversed and
remanded the case for further proceedings. State v. Prade, 2014-Ohio-1035, 9
N.E.3d 1072, ¶ 131.
       {¶ 9} On remand, the case was reassigned to Judge Croce. Judge Croce
ordered that Prade’s conviction for aggravated murder be reinstated and that he be




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returned to prison consistent with the 1998 sentencing order. Prade has been
imprisoned since July 25, 2014. He has appealed Judge Croce’s denial of his
motion for a new trial; the Ninth District Court of Appeals has stayed its
consideration of that appeal pending our decision in this case.
        {¶ 10} On May 4, 2016, Prade filed this original action seeking a writ of
prohibition. On July 27, 2016, this court denied respondents’ motions to dismiss
and issued an alternative writ. 146 Ohio St.3d 1467, 2016-Ohio-5108, 54 N.E.3d
1266.
                                   Legal Analysis
        {¶ 11} “A writ of prohibition is an extraordinary remedy that is granted in
limited circumstances with great caution and restraint.” State ex rel. Corn v. Russo,
90 Ohio St.3d 551, 554, 740 N.E.2d 265 (2001). A writ of prohibition will issue
upon the showing of three elements: “the exercise of judicial power, the lack of
authority for the exercise of that power, and the lack of an adequate remedy in the
ordinary course of law.” State ex rel. Ford v. Ruehlman, 149 Ohio St.3d 34, 2016-
Ohio-3529, 73 N.E.3d 396, ¶ 61. There is no dispute that the first element has been
established: the Ninth District unquestionably exercised judicial power by
considering the state’s appeal, as did Judge Croce in effectuating the court of
appeals’ judgment on remand.           However, Prade must also establish that
respondents’ exercise of judicial power was unauthorized by law.
        R.C. 2945.67(A) Authorizes the State to Appeal in Certain Situations
        {¶ 12} R.C. 2945.67(A) limits the ability of the state to appeal in criminal
cases. State ex rel. Steffen v. First Dist. Court of Appeals, 126 Ohio St.3d 405,
2010-Ohio-2430, 934 N.E.2d 906, at ¶ 21. R.C. 2945.67(A) provides:


        A prosecuting attorney, village solicitor, city director of law, or the
        attorney general may appeal as a matter of right any decision of a
        trial court in a criminal case, or any decision of a juvenile court in a




                                           4
                                January Term, 2017




       delinquency case, which decision grants a motion to dismiss all or
       any part of an indictment, complaint, or information, a motion to
       suppress evidence, or a motion for the return of seized property or
       grants post conviction relief pursuant to sections 2953.21 to
       2953.24 of the Revised Code, and may appeal by leave of the court
       to which the appeal is taken any other decision, except the final
       verdict, of the trial court in a criminal case or of the juvenile court
       in a delinquency case.


(Emphasis added.)
       {¶ 13} Prade asserts that the “except the final verdict” modifier in R.C.
2945.67(A) applies not only to appeals by leave of court but also to appeals as of
right and that the trial court’s judgment granting him postconviction relief and
finding him actually innocent is a “final verdict” from which the state may not
appeal. In the alternative, Prade argues that even if the state can appeal the trial
court’s grant of postconviction relief, the finding of actual innocence remains a
separate decision that constitutes an unappealable final verdict. Prade’s arguments
turn on faulty premises and are ultimately unpersuasive.
  R.C. 2945.67(A) Unambiguously Grants the State the Right to Appeal a Trial
                 Court’s Judgment Granting Postconviction Relief
       {¶ 14} When confronted with an argument over the meaning of a statute,
this court’s “ ‘paramount concern is the legislative intent’ of its enactment.” Steffen
at ¶ 30, quoting State ex rel. Steele v. Morrissey, 103 Ohio St.3d 355, 2004-Ohio-
4960, 815 N.E.2d 1107, ¶ 21. In discerning legislative intent, we “consider the
statutory language in context, construing words and phrases in accordance with
rules of grammar and common usage.” State Farm Mut. Auto. Ins. Co. v. Grace,
123 Ohio St.3d 471, 2009-Ohio-5934, 918 N.E.2d 135, ¶ 25; accord R.C. 1.42.
And when “the meaning of a statute is unambiguous and definite, it must be applied




                                          5
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as written and no further interpretation is necessary.” State ex rel. Savarese v.
Buckeye Local School Dist. Bd. of Edn., 74 Ohio St.3d 543, 545, 660 N.E.2d 463
(1996), citing State ex rel. Herman v. Klopfleisch, 72 Ohio St.3d 581, 584, 651
N.E.2d 995 (1995).
       {¶ 15} We begin by noting that “referential and qualifying words and
phrases, where no contrary intention appears, refer solely to the last antecedent.”
Carter v. Youngstown Div. of Water, 146 Ohio St. 203, 209, 65 N.E.2d 63 (1946).
Thus, on its face, the qualifying phrase “except the final verdict” applies only to the
second part of R.C. 2945.67(A). It does not apply to the four situations listed in the
“appeal as of right” portion of the statute. Accord State v. Keeton, 18 Ohio St.3d
379, 481 N.E.2d 629 (1985), paragraph one of the syllabus.
       {¶ 16} We have previously noted that the legislative intent behind R.C.
2945.67(A) was “apparent” and that the statute granted the state an appeal as of
right from four distinct categories of trial-court decisions: “(1) a decision which
grants a motion to dismiss all or any part of an indictment, complaint, or
information; (2) a motion to suppress evidence; (3) a motion for return of seized
property; and (4) a motion which grants post-conviction relief under R.C. 2953.21
to 2953.24.” State v. Fraternal Order of Eagles Aerie 0337 Buckeye, 58 Ohio St.3d
166, 167, 569 N.E.2d 478 (1991) (“F.O.E. Aerie 0337”). We also noted that “the
last portion of R.C. 2945.67(A) provides the state with a discretionary appeal ‘by
leave of the court’ from any other decision of the trial court, except a final verdict.”
Id.
       {¶ 17} Our decision in F.O.E. Aerie 0337 is consistent with our earlier
decisions addressing the meaning of R.C. 2945.67(A). For instance, in 1985, we
determined that a “directed verdict of acquittal [under Crim.R. 29(A)] by the trial
judge in a criminal case is a ‘final verdict’ within the meaning of R.C. 2945.67(A)
which is not appealable by the state as a matter of right or by leave * * *.” Keeton,
18 Ohio St.3d 379, 481 N.E.2d 629 (1985), at paragraph two of the syllabus. We




                                           6
                                 January Term, 2017




further held that “[i]n addition to those rulings in which the state is granted an
appeal as of right pursuant to R.C. 2945.67(A) the state may, by leave of the
appellate court, appeal any decision of a trial court in a criminal case which is
adverse to the state except a final verdict.” Id. at paragraph one of the syllabus.
This means that the “except the final verdict” language applies only to appeals by
leave, which are in addition to the four specific types of decisions from which the
state has an appeal as of right. Two years later, we held that a judgment of acquittal
based on Crim.R. 29(C) is a “final verdict” that “is not appealable by the state as a
matter of right or by leave to appeal pursuant to [R.C. 2945.67(A)].” State ex rel.
Yates v. Montgomery Cty. Court of Appeals, 32 Ohio St.3d 30, 512 N.E.2d 343
(1987), syllabus (following Keeton).
       {¶ 18} Prade argues that this court’s statement in Yates that “R.C.
2945.67(A) prevents an appeal of any final verdict,” see id. at 32, means that the
statute’s “except the final verdict” language applies to both as-of-right appeals and
by-leave-of-court appeals. However, Keeton makes clear that the state’s right to
seek leave to appeal is in addition to its right to appeal the four types of trial-court
decisions specifically enumerated. The express language of R.C. 2945.67(A) bars
the state from seeking leave to appeal “any final verdict.” It follows that the state
also has no appeal of as right from a final verdict because a “final verdict” is not
listed among the four distinct types of trial-court decisions from which the state
may appeal as of right.
        {¶ 19} Prade therefore is incorrect that Yates stands for the proposition that
the “except the final verdict” language limits the types of decisions from which the
state has a right to appeal under R.C. 2945.67(A). Consistent with Keeton, Yates,
and F.O.E. Aerie 0337, we conclude that R.C. 2945.67(A) is not ambiguous and
expressly grants the state an absolute appeal as of right from a decision granting
postconviction relief. Moreover, the statute governing postconviction appeals, R.C.
2953.23, confirms this construction of R.C. 2945.67(A). R.C. 2953.23(B) provides




                                           7
                             SUPREME COURT OF OHIO




that “[a]n order awarding or denying relief sought in a petition filed pursuant to
section 2953.21 of the Revised Code is a final judgment and may be appealed
pursuant to Chapter 2953. of the Revised Code.”
       {¶ 20} Prade contends that any interpretation of R.C. 2945.67(A) must be
strictly construed against the state because the statute represents a departure from
the “general rule prohibiting appeals by the state in criminal prosecutions,” State v.
Bassham, 94 Ohio St.3d 269, 271, 762 N.E.2d 963 (2002). However, “courts do
not have the authority to ignore the plain and unambiguous language of a statute
under the guise of either statutory interpretation or liberal construction; in such
situation, the courts must give effect to the words utilized.” Morgan v. Adult Parole
Auth., 68 Ohio St.3d 344, 347, 626 N.E.2d 939 (1994).
       {¶ 21} We hold that R.C. 2945.67(A) unambiguously grants the state a right
to appeal a trial court’s judgment granting postconviction relief, without
qualification.
        The Trial Court’s Judgment Was a Grant of Postconviction Relief
       {¶ 22} Prade attempts to argue that the postconviction judgment at issue in
this case included not one decision but two: the finding of actual innocence and the
general grant of postconviction relief. He contends that “[w]hile the State is free to
use its ‘absolute’ right to appeal Judge Hunter’s decision granting postconviction
relief for purposes of testing the legal soundness of that decision * * * the acquittal
itself—a final verdict—must remain undisturbed, as appellate review of the
acquittal is barred by R.C. 2945.67(A).”
       {¶ 23} One of the cases Prade cites in support of this argument is State v.
Bistricky, 51 Ohio St.3d 157, 555 N.E.2d 644 (1990). In Bistricky, the state sought
leave to appeal two substantive legal rulings underlying the trial court’s decision to
grant a verdict of acquittal in favor of the defendants. The court of appeals
dismissed the state’s appeal, finding that it lacked authority to review the trial
court’s judgment, and the state appealed. We reversed, holding that “[a] court of




                                           8
                                January Term, 2017




appeals has discretionary authority pursuant to R.C. 2945.67(A) to review
substantive law rulings made in a criminal case which result in a judgment of
acquittal so long as the judgment itself is not appealed.” Id. at syllabus.
        {¶ 24} Bistricky is inapposite.       Here, the trial court’s order granted
postconviction relief. Despite the fact that the trial court’s judgment vacated
Prade’s murder conviction, R.C. 2945.67(A) unambiguously provides the state a
right of appeal from a judgment granting postconviction relief. We reject Prade’s
argument that the judgment is akin to a “final verdict,” because it ignores the
statute’s plain language.
        {¶ 25} Alternatively, Prade contends that the trial court’s finding of actual
innocence transforms its postconviction judgment into a “final verdict.” He argues
that this was an exoneration and is therefore indistinguishable from the directed
verdict in Keeton and the Crim.R.29(C) judgment of acquittal in Yates. To
conclude otherwise, he says, would elevate form over substance. But this is a
difference of substance, not form. A “verdict” occurs when guilt or innocence is
determined in the first instance. See Black’s Law Dictionary (10th Ed.2014)
(defining “verdict” as “1. A jury’s finding or decision on the factual issues of a
case”). A judgment granting postconviction relief necessarily occurs subsequent to
the “final verdict.”
        {¶ 26} We reject Prade’s arguments, which attempt to introduce needless
ambiguity into otherwise clear statutory language and defy the basic tenets of
statutory construction.
                                    Conclusion
        {¶ 27} We hold that R.C. 2945.67(A) and 2953.23(B) unambiguously allow
the state an absolute right to appeal a judgment granting postconviction relief.
Therefore, Prade has not demonstrated that the Ninth District’s exercise of
jurisdiction over the state’s appeal was unauthorized by law. Likewise, he fails to
demonstrate that Judge Croce lacked jurisdiction to carry the Ninth’s District’s




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judgment into effect on remand or that the Ninth District lacks jurisdiction over his
pending appeal of Judge Croce’s denial of his motion for a new trial. Accordingly,
he is not entitled to a writ of prohibition.
                                                           Writ of prohibition denied.
        O’DONNELL, KENNEDY, FRENCH, FISCHER, and DEWINE, JJ., concur.
        O’NEILL, J., dissents, with an opinion.
        O’CONNOR, C.J., not participating.
                                 _________________
        O’NEILL, J., dissenting.
        {¶ 28} Respectfully, I dissent.
        {¶ 29} It would appear that relator, Captain Douglas Prade, is serving a life
sentence for murdering his wife notwithstanding the fact that the state has not
proven that he is guilty of the crime. At trial, the state offered expert testimony that
Prade was the individual who bit his wife’s arm during her murder, based upon a
comparison of the bite mark and a casting of Prade’s teeth. State v. Prade, 139
Ohio App.3d 676, 699-700, 745 N.E.2d 475 (9th Dist.2000). This was the only
physical evidence connecting Prade to the scene of the crime. Id. at 697-700. Now,
of course, we know that advanced Y-chromosome short tandem repeat (“Y-STR”)
DNA testing—not in existence at the time of trial—has shown that the only male
DNA found on the victim’s clothing was located where the murderer bit the victim
and that Captain Prade was conclusively excluded as the source of that DNA. State
v. Prade, 2014-Ohio-1035, 9 N.E.3d 1072, ¶ 9-12 (9th Dist.). Yet he remains in
jail.
        {¶ 30} I do not quarrel with the majority’s decision to leave intact the order
of the Ninth District Court of Appeals and the trial-court order reinstating Prade’s
conviction and sentence. The best that can be said for those orders is that those
courts had jurisdiction to issue them, and prohibition is not appropriate to disturb
them. And I cannot say whether a jury would convict Prade again if the state were




                                           10
                                January Term, 2017




given another chance to prove its case. But I can say with certainty that Prade was
“unavoidably prevented from discovering” the Y-STR DNA evidence until that
testing methodology became available after trial, Crim.R. 33(B), and that this was
“new evidence material to the defense” that Prade “could not with reasonable
diligence have discovered and produced at the trial,” Crim.R. 33(A)(6).
       {¶ 31} Just like the trial judge who originally ordered postconviction relief
and conditionally ordered a new trial, I have no doubt that this case needs to go to
a new jury. Justice for the defendant and the victim demands no less. However, it
is remarkable that the state, through appeals and procedural wrangling, has been
able to keep this case alive long enough to find a new trial judge who will give it
what it wants—not only a reinstated conviction after appeal but also reconsideration
of the order requiring a new trial. Surely a “reconsideration” of a final order by a
trial court is a nullity. Pitts v. Dept. of Transp., 67 Ohio St.2d 378, 423 N.E.2d
1105 (1981), paragraph one of the syllabus.
       {¶ 32} To remedy what I consider to be an astounding miscarriage of
justice, I would grant a peremptory writ of prohibition directing the trial court to
vacate its March 11, 2016 order reconsidering and denying Prade’s motion for a
new trial and to reinstate the January 29, 2013 order for a new trial. On March 19,
2014, the court of appeals reversed the trial court’s order granting postconviction
relief, State v. Prade, 2014-Ohio-1035, 9 N.E.3d 1072, at ¶ 131, and the condition
on the new-trial order was met. At that time, the order “determine[d] the action and
prevent[ed] a judgment” in favor of the state on the new-trial motion and became
final and appealable. R.C. 2505.02(B)(1). The state had 30 days to appeal. App.R.
4(A)(2) (“a party who wishes to appeal from an order that is not final upon its entry
but subsequently becomes final * * * shall file the notice of appeal required by
App.R. 3 within 30 days of the date on which the order becomes final”). And the
state did appeal, although the court of appeals incorrectly believed that the order
was not final and appealable. State v. Prade, 9th Dist. Summit No. 27323 (Aug.




                                         11
                              SUPREME COURT OF OHIO




14, 2014). We declined to review the decision upon the state’s request, State v.
Prade, 142 Ohio St.3d 1449, 2015-Ohio-1591, 29 N.E.3d 1004, as is our
prerogative even in cases that were decided in legal error. But the January 29, 2013
order that granted Prade a new trial was no less final and appealable, and the trial
court patently and unambiguously lacked jurisdiction to reconsider that order. Pitts
at paragraph one of the syllabus. Because the trial court’s order on reconsideration
is a legal nullity, I would also issue a writ of prohibition directing the court of
appeals to terminate the appeal from that order.
        {¶ 33} The people of Ohio and Captain Prade are entitled to a fair trial. That
still has not happened, and it should. Because the per curiam opinion does not bring
that day any closer, I cannot join it.
        {¶ 34} Respectfully, I dissent.
                                _________________
        Jones Day, David Booth Alden, Lisa B. Gates, Emmett E. Robinson, and
Matthew R. Cushing; and The Ohio Innocence Project, Mark A. Godsey, and Brian
C. Howe, for relator.
        Michael DeWine, Attorney General, and Tiffany L. Carwile and Sarah E.
Pierce, Assistant Attorneys General, for respondent Ninth District Court of
Appeals.
        Sherri Bevan Walsh, Summit County Prosecuting Attorney, and Colleen M.
Sims and Heaven R. DiMartino, Assistant Prosecuting Attorneys, for respondent
Judge Christine Croce.
                                _________________




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