Opinion
No. 107326
03-21-2019
STATE OF OHIO PLAINTIFF-APPELLEE v. ERIC G. WILSON DEFENDANT-APPELLANT
ATTORNEY FOR APPELLANT Michael J. Cheselka 75 Public Square, Suite 920 Cleveland, Ohio 44113 ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor By: Katherine Mullin Assistant County Prosecutor The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 Robert G. Cohen Jane Katherine Gleaves Kegler, Brown, Hill & Ritter Co., L.P.A. 65 East State Street, Suite 1800 Columbus, Ohio 43215
JOURNAL ENTRY AND OPINION JUDGMENT: DISMISSED Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-17-622972-B BEFORE: Keough, J., Boyle, P.J., and Blackmon, J.
ATTORNEY FOR APPELLANT
Michael J. Cheselka
75 Public Square, Suite 920
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Michael C. O'Malley
Cuyahoga County Prosecutor
By: Katherine Mullin
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113 Robert G. Cohen
Jane Katherine Gleaves
Kegler, Brown, Hill & Ritter Co., L.P.A.
65 East State Street, Suite 1800
Columbus, Ohio 43215 KATHLEEN ANN KEOUGH, J.:
{¶1} Defendant-appellant, Eric G. Wilson, appeals the from the trial court's order disqualifying and removing his retained counsel and appointing replacement counsel. For the reasons that follow, we dismiss this appeal for lack of jurisdiction.
{¶2} In November 2017, Wilson was named in a nine-count indictment charging him and his codefendants with multiple offenses including aggravated murder; Wilson retained counsel. The case was scheduled for trial on April 30, 2018. However, on March 27 both the state and Wilson's counsel filed separate motions to continue the trial. The motions were not ruled on and the trial remained set for April 30. Following defense counsel's failure to appear for trial on April 30, 2018, and after being duly notified that any failure to appear would result in disqualification, the trial court issued an order and written decision removing Wilson's retained counsel and appointing replacement counsel.
{¶3} Wilson now appeals, raising the following single assignment of error:
The trial court erred and abused its discretion when it failed to grant the requested continuance both authorized and prescribed under Rule 41(B)(2)(a) of the Rules of Superintendence for the Court of Ohio ("Super.R."); thus leading to the unnecessary removal of retained counsel and all subsequent matters relating to [him] and criminal case CR-17-622972-B.
{¶4} Ohio's courts of appeal have jurisdiction "to review and affirm, modify, or reverse final orders." Section 3(B)(2), Article IV, Ohio Constitution. R.C. 2505.02 sets forth several types of final, appealable orders. "A pretrial ruling removing a criminal defendant's retained counsel of choice is a final order subject to immediate appeal." State v. Chambliss, 128 Ohio St.3d 507, 2011-Ohio-1785, 947 N.E.2d 651, syllabus.
{¶5} Although Wilson has appealed from the trial court's decision disqualifying his retained counsel, his assignment of error and arguments raised therein make no challenge to this order. Instead, the appeal challenges the trial court's discretion in denying his motion to continue. As the state correctly points out, by counsel's failure to appear, the case was continued; thus, rendering the issue moot. Nevertheless, because the assignment of error and argument raised do not relate to the subject of the interlocutory appeal upon which this court has jurisdiction, the appeal must be dismissed.
{¶6} Dismissed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. /s/_________
KATHLEEN ANN KEOUGH, JUDGE MARY J. BOYLE, P.J., and
PATRICIA ANN BLACKMON, J., CONCUR