[Cite as State v. Awkal,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION Nos. 98532 and 98553

STATE OF OHIO PLAINTIFF-APPELLANT

vs.

ABDUL H. AWKAL DEFENDANT-APPELLEE

JUDGMENT: DISMISSED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-276801

BEFORE: Blackmon, A.J., Cooney, J., and S. Gallagher, J.

RELEASED AND JOURNALIZED: August 30, 2012 ATTORNEYS FOR APPELLANT

William D. Mason Cuyahoga County Prosecutor

By: Katherine Mullin Matthew E. Meyer Assistant County Prosecutors 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

R. Brian Moriarty R. Brian Moriarty, L.L.C. 2000 Standard Building 1370 Ontario Street Cleveland, Ohio 44113

Ngozi Ndulue Ohio Justice & Policy Center 215 East Ninth Street Suite 601 Cincinnati, Ohio 45202

Kevin M. Cafferkey 2000 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 PATRICIA ANN BLACKMON, A.J.:

{¶1} Appellant state of Ohio (“state”) appeals the trial court’s decision that found

Abdul H. Awkal (“Awkal”) incompetent to be executed. Awkal filed a motion to

dismiss the appeal. After reviewing the record and pertinent law, we dismiss the state’s

appeal.

{¶2} Whether the state can appeal from the trial court’s determination that a

defendant is incompetent for purposes of execution is a case of first impression in Ohio.

In all of the other Ohio cases regarding competency to be executed, the defendant filed

the appeal. See State v. Scott,

,

,

; State v.

Brooks, 8th Dist. Nos. 97455 and 97509,

; Bedford v. State,

,

,

(1st Dist). The defendant has an appeal

as a matter of right; these cases do not address the state’s right to appeal.

{¶3} We conclude the state does not have a right to an appeal. Under the Ohio

Constitution, “the state has no absolute right of appeal in a criminal matter unless

specifically granted such right by statute.” State v. Fisher,

,

(1988). R.C. 2945.67(A) sets forth the prosecutor’s right to appeal and

provides in pertinent part:

A prosecuting attorney * * * may appeal as a matter of right any

decision of a trial court in a criminal 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. (Emphasis added.)

{¶4} The proceeding that occurred below, although labeled as a petition for

postconviction relief, was not a petition for postconviction relief.1 R.C. 2953.21 defines

a petition for postconviction relief as follows:

(A) (1) (a) Any person who has been convicted of a criminal offense * *

* who claims that there was such a denial or infringement of the

person’s rights as to render the judgment void or voidable under the

Ohio Constitution or the Constitution of the United States, and any

person who has been convicted of a criminal offense that is a felony and

who is an offender, for whom DNA testing that was performed under

sections 2953.71 to 2953.81 of the Revised Code or under former

section 2953.82 of the Revised Code and analyzed in the context of and

upon consideration of all available admissible evidence related to the

person’s case as described in division (D) of section 2953.74 of the

1 The assistant prosecutor admitted at oral argument that the proceeding was Revised Code provided results that establish, by clear and convincing

evidence, actual innocence of that felony offense or, if the person was

sentenced to death, establish, by clear and convincing evidence, actual

innocence of the aggravating circumstance or circumstances the person

was found guilty of committing and that is or are the basis of that

sentence of death, may file a petition in the court that imposed

sentence, stating the grounds for relief relied upon, and asking the

court to vacate or set aside the judgment or sentence or to grant other

appropriate relief. The petitioner may file a supporting affidavit and

other documentary evidence in support of the claim for relief.

(Emphasis added.)

{¶5} Awkal did not seek to vacate his conviction. His request was for a

competency determination, which is statutorily created by R.C. 2949.28 and 2949.29.

R.C. 2949.28 provides that if a death sentence defendant “appears to be insane, the

warden or the sheriff having custody of the convict, the convict’s counsel, or psychiatrist

or psychologist who has examined the convict shall give notice of the apparent insanity to

* * * the judge.” Therefore, although it was captioned as a petition for postconviction

relief, and the court ruled on it as if it was a petition, it was actually the notice of filing

pursuant to R.C. 2949.28. Merely because the trial court used the wrong terminology in

not a petition for postconviction relief. ruling on the motion does not constitute grounds for an appeal; nor does it change the

character of the court’s action or order.

{¶6} During oral argument, the state reminded us that it not only filed an appeal

as of right, but also requested leave to appeal. We also deny the state’s request for leave

to appeal. The Ohio Supreme Court in State v. Ross,

,

,

, quoting State v. Keeton,

,

(1985), paragraph one of syllabus, held:

In 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.

{¶7} Although Ross recognizes a leave to appeal, we conclude that regarding the

competency of death-sentence defendants, the matter rests solely with the legislature, and

we believe the legislature did not contemplate review by any reviewing court, when the

trial court finds the death-sentenced defendant incompetent to be put to death. R.C.

2949.29(B) gives the trial court continuing jurisdiction when the defendant is found to be

insane. It states in pertinent part:

If it is found that the convict is insane and if authorized by the supreme court, the judge shall continue any stay of execution of the sentence previously ordered, * * *and order treatment of the convict. Thereafter, the court at any time may conduct and, on motion of the prosecuting attorney, shall conduct a hearing pursuant to division (A) of this section to continue the inquiry into the convict’s insanity and, as provided in section 2949.28 of the Revised Code, may appoint one or more psychiatrists or psychologists to make a further examination of the convict and to submit a report to the court. (Emphasis added.)

{¶8} Therefore, because the legislature did not intend to provide the state with

the ability to appeal, we are prevented from granting the state leave to appeal from the

trial court’s finding of incompetency under Ross.

{¶9} We note concerns were raised at oral argument that if the state is not

permitted to appeal from the trial court’s finding of incompetency, nothing prevents a trial

judge from continually finding the defendant to be incompetent in order to prevent

execution. However, in such a case, the state could oppose the stay of execution in the

Ohio Supreme Court, file a writ of prohibition before this court, or file an affidavit of

prejudice to remove the judge based on the appearance the trial court judge is exercising

some form of nullification of the death penalty law.

{¶10} If the defendant receives the ordered medical treatment, and the trial court

refuses to conduct a hearing pursuant to R.C. 2949.29 to reevaluate the defendant’s

competency, the state could file a writ of mandamus before this court or the Ohio

Supreme Court. In any event, the state is not without a remedy under R.C. 2949.28 and

2949.29. It is just not the remedy it wants, which is to challenge the sufficiency of the

evidence the trial court relied on in determining that Awkal was incompetent. After all,

Awkal continues to be subject to the death penalty. The issue for the state is timing,

which the legislature controls, not the judiciary. {¶11} Assuming arguendo that we granted the state leave to appeal, the state’s

appeal is not from a final, appealable order. “In 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.” State v. Muncie,

,

,

. R.C. 2505.02(B) provides, in

relevant part, as follows:

An order is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial, when it is one of the following:

(1) An order that affects a substantial right in an action that in effect determines the action and prevents a judgment;

(2) An order that affects a substantial right made in a special proceeding or upon a summary application in an action after judgment;

(3) An order that vacates or sets aside a judgment or grants a new trial;

(4) An order that grants or denies a provisional remedy and to which both of the following apply:

(a) The order in effect determines the action with respect to the provisional remedy and prevents a judgment in the action in favor of the appealing party with respect to the provisional remedy.

(b) The appealing party would not be afforded a meaningful or

effective remedy by an appeal following final judgment as to all

proceedings, issues, claims, and parties in the action.2

We need not address the fifth through seventh categories set forth in R.C. 2

2505.02(B), because this case is obviously not a class action, does not dispute {¶12} “Substantial right” is defined in R.C. 2505.02(A) as “a right that the

United States Constitution, the Ohio Constitution, a statute, the common law, or a rule of

procedure entitles a person to enforce or protect.” Thus, the state does have a substantial

right to enforce the sentence imposed. However, in order to be a final order, the order

must be one that “affects a substantial right.” An order affects a substantial right only

if, in the absence of an immediate appeal, it forecloses appropriate relief in the future or

prejudices one of the parties involved. Bell v. Mt. Sinai Med. Ctr.,

,

(1993).

{¶13} A defendant’s substantial right is affected when he or she is found to be

competent for execution because obviously a defendant cannot raise the issue once

executed. The state, however, does not have a substantial right that is affected because

unlike in cases where the defendant appeals his competency, the trial court’s decision

does not foreclose appropriate relief in the future, nor does it prejudice the state. Once

Awkal is deemed competent, the stay will be lifted, and he will be executed. In fact,

R.C. 2949.29(B), which governs the procedure in determining the competency to be

executed, provides that once a court finds the defendant to be incompetent and orders the

convict to be treated, “thereafter, the court at any time may conduct and, on motion of the

prosecuting attorney, shall conduct a hearing pursuant to division (A) of this section to

amendments made by Am. Sub. S.B. 281 or Am. Sub. S.B. 80, and is not an appropriation proceeding. continue the inquiry into the convict’s insanity * * *.” (Emphasis added.) Therefore, the

statute acknowledges that a finding of incompetency does not end the matter. There is no

indication at this juncture of the case that it is impossible to make Awkal competent; thus,

the state has not been foreclosed from executing Awkal in the future. Because the state

does not have a substantial right that is affected by the court’s order, the first two

categories of a final order do not apply.

{¶14} The third category also does not apply because the trial court’s decision does

not vacate or set aside a judgment or grant a new trial because the trial court’s decision

does not affect Awkal’s underlying conviction of guilt or sentence of death.

{¶15} The fourth category regarding a provisional remedy also does not apply.

R.C. 2505.02(A)(3) defines a provisional remedy as “a proceeding ancillary to an action.”

Although the proceeding to determine competency is ancillary to Awkal’s death

sentence, the following requirements must also be met:

(2) the order must both determine the action with respect to the provisional remedy and prevent a judgment in favor of the appealing party with respect to the provisional remedy, and (3) the reviewing court must decide that the party appealing from the order would not be afforded a meaningful or effective remedy by an appeal following final judgment as to all proceedings, issues, claims, and parties in the action. Muncie,

,

,

.

{¶16} In the instant case, the trial court’s finding of incompetency does not

prevent it from finding in the future that Awkal is competent after he receives the ordered

medical treatment. As we stated above, the process has not yet ended, but is ongoing. The state also does not suffer unrecoverable damage by the court’s ordering the execution

to be suspended until Awkal is deemed competent. As stated previously, there is no

indication at this juncture that Awkal cannot be made competent with medical treatment.

Thus, the trial court’s determination that Awkal is incompetent does not meet the

requirements to make a provisional remedy a final order.

{¶17} This conclusion does not conflict with the Ohio Supreme Court’s decision in

State v. Upshaw,

,

,

, where the court

held that a defendant’s appeal from a trial court’s determination that defendant was not

competent to stand trial met the requirements of a provisional remedy. In Upshaw, the

defendant was the appellant, which as we discussed above, is a significant difference.

The defendant in Upshaw was found incompetent to stand trial and was committed to an

institution for the restoration of mental competency. The defendant appealed the court’s

order, and the supreme court found that it was a final order. In so doing, the court found

that the order constituted a provisional remedy.

{¶18} The supreme court also found that the trial court’s ordering the defendant to

be committed to an institution resulted in a loss of liberty to defendant and that “nothing

could recover for the defendant the time lost during his confinement” even if he was

eventually found to be competent to stand trial. We do not have that issue here. As we

stated, the state is not prejudiced by having to wait to execute Awkal until he becomes

competent. Thus, pursuant to R.C. 2505.02(B), the trial court’s determination that Awkal is incompetent does not constitute a final, appealable order, and we are without

jurisdiction to hear the appeal.

{¶19} Appeal dismissed.

It is ordered that appellee recover of appellant his costs herein taxed.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

PATRICIA ANN BLACKMON, ADMINISTRATIVE JUDGE

COLLEEN CONWAY COONEY, J., CONCURS; SEAN C. GALLAGHER, J., CONCURS IN JUDGMENT ONLY WITH ATTACHED OPINION

SEAN C. GALLAGHER, J., CONCURRING IN JUDGMENT ONLY:

{¶20} While I concur with the majority’s view that appellant’s motion for leave to

appeal should be denied at this level, I do not agree that the trial court’s decision is not a

final appealable order capable of review.

{¶21} I believe conferring jurisdiction on appellate courts to hear competency to

be executed determinations under R.C. 2949.28 and 2949.29 goes against the spirit of the

Ohio Constitution, Article IV, Section 3(B)(2).

{¶22} R.C. 2949.28 and 2949.29 are silent on appellate review. The Ohio

Constitution, Article IV, Section 3(B)(2), expressly states that “* * * except that courts of appeals shall not have jurisdiction to review on direct appeal a judgment that imposes a

sentence of death.” (Emphasis added.) While the trial court found Awkal incompetent,

the decision dealt directly with the imposition of the death sentence. If the state has a

remedy for the trial judge’s decision, it is by way of direct appeal to the Supreme Court of

Ohio.

{¶23} In State v. Davis,

,

,

, the

Supreme Court of Ohio carved out a narrow exception to the constitutional mandate of

exclusive jurisdiction on death penalty matters, holding that appellate courts could review

a trial court’s denial of a postconviction motion for leave to file a motion for a new trial.

But as the majority correctly points out, R.C. 2949.28 competency to be executed

determinations are not postconviction petitions. They do not go to the underlying

conviction. They go to the present mental state of the offender and his or her

competency to be executed. Admittedly, this has been a confusing area in the past with

even this writer participating in a decision that blurred the distinction between R.C.

2953.21 and R.C. 2949.28 and 2949.29. See State v. Brooks, 8th Dist. Nos. 97455 and

97509,

.

{¶24} Also, I disagree with the majority’s view that the state’s appeal is not

subject to review. I believe R.C. 2945.67(A) affords the state the right to appeal, by

leave of court, any decision, other than the final verdict, in a criminal case, particularly

when it affects a significant interest or involves a situation that may reoccur and evade review. I can think of no other decision that is more significant in criminal law than a

death sentence. I also believe that the state has the right to seek redress under R.C.

2505.02(B)(2). Clearly, competency to be executed determinations under R.C. 2949.28

and 2949.29 are “special proceedings” under R.C. 2505.02(B)(2), and the state should at

least have the opportunity for review.

{¶25} My concerns here are heightened by the fact there were clear errors in the

procedural record of this case. As the majority noted and the state conceded, the trial

court improperly characterized this petition as a postconviction matter under R.C.

2953.21. The majority sweeps aside these procedural irregularities under the guise of

“wrong terminology,” but the record reflects more was at work in this instance than the

language or captions of the pleadings.

{¶26} First, this matter was heard as a “renewed” postconviction relief motion

where a prior ruling had already been made and journalized. A motion for

reconsideration of a final order is a nullity. Pitts v. Ohio Dept. of Transp.,

,

(1981). Even if this could be characterized as a “renewed”

postconviction petition, the trial court’s determination that a subsequent postconviction

petition was warranted under R.C. 2953.23(A) suggests that as long as a defendant’s

counsel could find a psychiatrist somewhere who would support their position, even 20

years after the expiration of the 180-day limit on postconviction petitions, they would be

deemed to have been “unavoidably prevented” from the discovery of this diagnosis. To deny the state the opportunity to at least have this process reviewed seems fundamentally

unfair. The trial court’s reference to “Atkins issues” (involving mental retardation) as a

basis for conferring jurisdiction is also troublesome. R.C. 2949.29 expressly precludes

any reference to mental health statutes when determining competency to be executed:

Neither Chapter 5122. or 5123. of the Revised Code nor any other provision of the Revised Code nor any other rule concerning mentally ill persons, mentally retarded persons, or insane persons applies to any proceeding for inquiry into the insanity of any convict sentenced to death.

{¶27} Awkal may well be incompetent to be executed, but the process to

determine his competency should at least follow the correct statute. I would dismiss this

appeal but afford the state the opportunity to request review by the Supreme Court of

Ohio.