Opinion
Appellate Court Case No. 28824
09-03-2020
STATE OF OHIO Plaintiff-Appellee v. JARED MICHAEL GLYNN Defendant-Appellant
Copies to: Christian Cavalier P.O. Box 10126 Dayton, Ohio 45402 Attorney for Appellant Sarah Hutnik 301 W. Third Street, 5th Floor Dayton, Ohio 45422 Attorney for Appellee Hon. Mary L. Wiseman Montgomery County Common Pleas Court 41 N. Perry Street P.O. Box 972 Dayton, Ohio 45422
Trial Court Case No. 2018 CR 02489 [Criminal Appeal from Common Pleas Court]
DECISION AND FINAL JUDGMENT ENTRY
PER CURIAM:
{¶ 1} Jared Michael Glynn appeals the trial court's June 9, 2020 Decision finding him competent to stand trial. The underlying criminal matter is ongoing and not yet complete.
{¶ 2} The State of Ohio filed a motion to dismiss the appeal as arising from an order that is not final and appealable. Glynn filed a response; the State filed a reply. Upon consideration of the parties' arguments and the relevant case law in Ohio, we SUSTAIN the motion to dismiss.
{¶ 3} An appellate court has jurisdiction to review only final orders or judgments of the lower courts in its district. Section 3(B)(2), Article IV, Ohio Constitution; R.C. 2505.02. We have no jurisdiction to review an order or judgment that is not final, and an appeal therefrom must be dismissed. Gen. Acc. Ins. Co. v. Ins. Co. of N. Am., 44 Ohio St.3d 17, 20, 540 N.E.2d 266 (1989).
{¶ 4} Generally, a final appealable order arises in a criminal case only after a final conviction and sentence have been entered by the trial court and journalized by the clerk. See State v. Gilbert, 143 Ohio St.3d 150, 2014-Ohio-4562, 35 N.E.3d 493, ¶ 8. However, some other orders may be considered final and appealable before a case has been resolved where the order satisfies one of the statutory definitions. See State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, 935 N.E.2d 9, ¶ 8 ("[I]n order to decide whether an order issued by a trial court in a criminal proceeding is a reviewable final order, appellate courts should apply the definitions of 'final order' contained in R.C. 2505.02") (internal citations and quotations omitted).
{¶ 5} For example, as relevant here, "an order finding a criminal defendant incompetent to stand trial and committing the defendant to an institution for the restoration of mental competency is a final, appealable order under R.C. 2505.02(B)(4)." (Emphasis added.) State v. Upshaw, 110 Ohio St.3d 189, 2006-Ohio-4253, 852 N.E.2d 711, ¶ 19. In contrast, several district courts have held that, "an order finding a party to be competent to stand to trial is not a final appealable because the party would have an adequate remedy of filing an appeal after disposition of the case." (Emphasis added.) State v. Eyajan, 11th Dist. Ashtabula No. 2019-A-0005, 2019-Ohio-419, ¶ 6; see also State v. Shine, 7th Dist. Mahoning No. 15 MA 0210, 2016-Ohio-1445, ¶ 9.
{¶ 6} These courts examine competency orders under R.C. 2505.02(B)(4), the provisional remedy subdivision of the statute defining final orders. Under R.C. 2505.02(B)(4), " 'for an order to qualify as a final appealable order, the following conditions must be met: (a) the order must grant or deny a provisional remedy, as defined in R.C. 2505.02(A)(3), (b) the order must determine the action with respect to the provisional remedy so as to prevent judgment in favor of the party prosecuting the appeal, and (c) a delay in review of the order until after final judgment would deprive the appellant of any meaningful or effective relief.' " State ex rel. Bates v. Court of Appeals for the Sixth Appellate Dist., 130 Ohio St.3d 326, 2011-Ohio-5456, 958 N.E.2d 162, ¶ 31, quoting Upshaw at ¶ 15.
{¶ 7} Here, we agree with Glynn that the trial court's Order finding him competent to stand trial was entered in an ancillary proceeding that fits within the definition of a provisional remedy in R.C. 2505.02(A)(3), satisfying the first requirement. In re J.W., 11th Dist. Geauga No. 2009-G-2939, 2010-Ohio-707, ¶ 9. The Order also determines the competency issue under R.C. 2505.02(B)(4)(a), satisfying the second requirement.
{¶ 8} The parties' dispute here is over the third requirement, which asks whether "a delay in review of the order until after final judgment would deprive the appellant of any meaningful or effective relief." Upshaw at ¶ 15; R.C. 2505.02(B)(4)(b). In J.W., the Eleventh District held that
the final appealable order decision in the present case must rest upon whether there would be an effective remedy by appeal following adjudication of the entire case. The potential loss of a meaningful or effective remedy associated with an incompetency finding as in Upshaw would simply not exist in cases where there is a competency finding. An incompetency finding would be
followed by a commitment until a competency finding is made in order for the trial to proceed. The time spent in a treatment facility waiting to be found competent to stand trial cannot be recouped. In contrast, when a party is declared competent to stand trial, the trial proceeds to final disposition, and an appeal may follow.In re J.W. at ¶ 14-15. This court and others have held similarly. See, e.g., State v. Demmons, 2d Dist. Montgomery No. 28711 (March 20, 2020); Shine, supra; Eyajan, supra; State v. Blankenship, 11th Dist. Ashtabula No. 2019-A-0018, 2019-Ohio-1304; In re E.H., 10th Dist. Franklin No. 15AP-680, 2016-Ohio-1186, ¶ 15-17.
Pursuant to the foregoing analysis, we find that a competency finding is a provisional remedy. However, such finding does not meet [R.C. 2505.02(B)(4)(b)] since appellant will have a meaningful and effective remedy by way of appeal after the case is completely resolved in the trial court. Therefore, we conclude that the order finding appellant competent to stand trial is not a final appealable order.
{¶ 9} The State points to several of these cases in support of its motion to dismiss. Glynn does not point to any cases holding that a competency finding is immediately appealable. Glynn instead analogizes his right not to stand trial if incompetent to the double jeopardy right protected in State v. Anderson, 138 Ohio St.3d 264, 2014-Ohio-542, 6 N.E.3d 23. In Anderson, the Supreme Court of Ohio held that the denial of motion to dismiss on double jeopardy grounds was a final appealable order under R.C. 2505.02(B)(4). On the third prong, the Supreme Court determined that an appeal after conviction was an inadequate remedy for a claimed violation of double jeopardy. Id. at ¶ 58-59. The Supreme Court explained that because the Double Jeopardy Clause protects against being tried twice for the same offense, an appeal after the second trial could not remedy the harm. Id. at ¶ 57 ("as a matter of federal constitutional law, retrial itself is one of the harms at issue in double-jeopardy cases. That harm cannot be remedied by a subsequent acquittal in the trial court or by the reversal of any conviction through appeal after trial."). Glynn similarly asserts that the right not to stand trial if incompetent cannot be adequately protected if he must stand trial before he can appeal.
{¶ 10} While there may be similarities between the right at issue here and in Anderson, the weight of authority in Ohio holds that a defendant found competent does have an meaningful remedy in an appeal after trial, as discussed above. We therefore hold in accordance with these authorities and conclude that the order on appeal here is not a final appealable order that this court can review at this time. Without a final order, we lack jurisdiction to proceed. Gen. Acc. at 20. We accordingly SUSTAIN the State's motion to dismiss. This matter, Montgomery Appellate Case No. 28824, is DISMISSED.
{¶ 11} Pursuant to Ohio App.R. 30(A), it is hereby ordered that the Clerk of the Montgomery County Court of Appeals shall immediately serve notice of this judgment upon all parties and make a note in the docket of the mailing. Costs taxed pursuant to App.R. 24.
SO ORDERED.
/s/_________
MICHAEL L. TUCKER, Presiding Judge
/s/_________
MICHAEL T. HALL, Judge
/s/_________
JEFFREY M. WELBAUM, Judge Copies to: Christian Cavalier
P.O. Box 10126
Dayton, Ohio 45402
Attorney for Appellant Sarah Hutnik
301 W. Third Street, 5th Floor
Dayton, Ohio 45422
Attorney for Appellee Hon. Mary L. Wiseman
Montgomery County Common Pleas Court
41 N. Perry Street
P.O. Box 972
Dayton, Ohio 45422 CA3/KY