COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 78154 STATE OF OHIO : : ACCELERATED DOCKET Plaintiff-Appellant : : JOURNAL ENTRY : -vs- : AND : DAVID BUCHANAN : OPINION : : Defendant-Appellee : : DATE OF ANNOUNCEMENT : MAY 31, 2001 OF DECISION : : CHARACTER OF PROCEEDINGS : Criminal appeal from : Common Pleas Court : Case No. CR-387380 JUDGMENT : REVERSED AND REMANDED. DATE OF JOURNALIZATION : APPEARANCES: For Plaintiff-Appellant: William D. Mason Cuyahoga County Prosecutor Francine B. Goldberg Assistant County Prosecutor 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellee: John P. Hildebrand Hildebrand, Williams & Farrell 21430 Lorain Road Fairview Park, Ohio 44126 ANNE L. KILBANE, J.: -2- This is an appeal from an order of Acting Administrative Judge William J. Coyne, which was entered in a case on the docket of Judge Christine McMonagle, dismissing an indictment charging appellee David Buchanan with escape. Buchanan, on post-release control following his incarceration for an earlier offense, moved without permission from his approved address and failed to report to his parole officer and was indicted for escape under R.C. 2921.34. The trial judge dismissed the indictment because of this court's opinion in State v. Jones (Sept. 2, 1999), Cuyahoga App. No. 74247, unreported, holding R.C. 2967.28 (the post-release control statute) unconstitutional. The Ohio Supreme Court in Woods v. Telb (2000), 89 Ohio St.3d 504, 733 N.E.2d 1103, held that the imposition of post-release controls was constitutional and not a violation of separation of powers and reversed Jones, supra. We reverse and remand. Because Buchanan failed to report to the Adult Parole Authority on October 25, 1999, he was indicted for escape on February 15, 2000. On April 18, 2000, he filed a motion to dismiss claiming that he could not be charged with escape for violation of post-release control, because the Jones decision found the post- release control statute, and therefore the imposition of post- release controls, unconstitutional. Buchanan also argued that his post-release control was not a temporary leave granted for a specific purpose or limited period from which he could escape. R.C. 2921.34. -3- At a hearing on May 11, 2000, the judge dismissed the indictment through an entry of May 19, 2000, stating: The parties stipulate that at the time of the instant offense, Defendant was on post-release control after completion of a definite sentence, and was charged with escape occurring on October 25, 1999 for failure to notify his parole officer of a change of address. Pursuant to State v. Jones 9-2-99 Cuy.App. #74247, unreported, and State v. Mitchell, 5-11-00 Cuy.App. #77428, unreported, over objection of the State of Ohio, this motion to dismiss is Granted. Deft to be released from custody on this charge. The State's appeal was stayed pending the Ohio Supreme Court's review and decision in Jones. On August 3, 2000, the Supreme Court announced its opinion in Woods, supra, finding the post-release control statute, R.C. 2967.28, constitutional. On the same day, and on the authority of its opinion in Woods, it reversed the Jones decision. State v. Jones (2000), 89 Ohio St.3d 519, 733 N.E.2d 1115. The stay on this appeal was lifted on August 17, 2000. The State asserts a single assignment of error: R.C. 2967.28(B) DOES NOT VIOLATE THE SEPARATION OF POWERS DOCTRINE OR THE DUE PROCESS CLAUSES OF THE UNITED STATES OR OHIO CONSTITUTIONS. Although R.C. 2945.67 allows the State an appeal as of right from the dismissal of an indictment, we must still determine whether the dismissal is a final, appealable order. State v. Hayes (1986), 25 Ohio St.3d 173, 174, 495 N.E.2d 578, 579-80. The judge's decision was expressly based upon this court's opinion in Jones that post-release controls were unconstitutional and unenforceable. Assuming, arguendo, that a dismissal of an indictment without prejudice is not a final, appealable order, -4- see City of Fairview Park v. Fleming (Dec. 7, 2000), Cuyahoga App. Nos. 77323, 77324, unreported, but, see, State v. Busch (1996), 76 Ohio St.3d 613, 669 N.E.2d 1125 (complaining witness did not wish to proceed and State was allowed to appeal dismissal entry), we find the Buchanan dismissal was final and appealable. Absent a change in the law, the dismissal barred further prosecution and thus can only be seen as a final order. We must address finality from the time of the dismissal, without reference to later events because, even though our decision in Jones was overruled by the Ohio Supreme Court, this outcome was not certain at the time of judgment. Had our decision in Jones been upheld, the State would have had an opportunity, in this appeal, to argue for reversal or modification of that ruling. If we found the dismissal of Buchanan's indictment not to be final and appealable, the State would be denied the opportunity to argue for reversal or modification of existing law in this case and in countless other situations. Therefore, although the effect on this case is minimal, we find the proper resolution here is to reverse the dismissal and reinstate the original indictment, rather than to dismiss the appeal and allow reindictment.1 See, also, State v. Sims (Feb. 8, 2001), Cuyahoga App. No. 77762, unreported. The reversal of our Jones decision mandates reversal here, because the judge's decision was expressly based upon it. Buchanan does not challenge the Ohio Supreme Court's decisions in Jones or 1Again, without deciding, we also question whether reindictment would have been proper absent the State's appeal. -5- Woods, but, instead, argues as he did in the trial court, that a violation of post-release control does not constitute escape as defined in R.C. 2921.34. This argument appears unavailing in light of recent decisions allowing such charges, and the inclusion of post-release control in the amended version of R.C. 2967.15(C)(2), which was passed to remove impediments to charging parole violators with escape. Cf. State v. Edgerson (Sept. 23, 1999), Cuyahoga App. No. 74761, unreported (construing R.C. 2967.15(C)(2) as it existed prior to the March 17, 1998 amendments). We do not intend, however, to foreclose Buchanan's arguments here; instead we find merely that the record is insufficient to allow us to affirm the dismissal on the alternative ground advanced. The judgment is reversed and remanded. -6- It is ordered that the appellant recover from the appellee its costs herein taxed. It is ordered that a special mandate issue out of this court directing the Cuyahoga County 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. ANNE L. KILBANE JUDGE DIANE KARPINSKI, A.J., and PATRICIA ANN BLACKMON, J., CONCUR N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc. App.R.22. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E), unless a motion for reconsideration with supporting brief, per App.R. 26(A) is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). .