[This decision has been published in Ohio Official Reports at
97 Ohio St.3d 1214.]
THE STATE OF OHIO, APPELLANT, v. LATORRES, APPELLEE.
[Cite as State v. Latorres, 2002-Ohio-5864.]
Appeal dismissed as improvidently allowed.
(No. 2001-1732—Submitted September 17, 2002—Decided November 13, 2002.)
APPEAL from the Court of Appeals for Ashtabula County, Nos. 2000-A-0060 and
2000-A-0062.
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{¶1} The cause is dismissed, sua sponte, as having been improvidently
allowed.
MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER and COOK, JJ.,
concur.
LUNDBERG STRATTON, J., dissents.
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LUNDBERG STRATTON, J., dissenting.
{¶2} I respectfully dissent from the majority’s decision to dismiss this
appeal as having been improvidently allowed. Defendant, Pablo LaTorres, was
charged with 19 counts of rape in violation of R.C. 2907.02(A)(1) and 3 counts of
corruption of a minor in violation of R.C. 2907.04(A). Defendant pleaded not
guilty to all counts.
{¶3} Just before trial was to begin, defendant orally requested the dismissal
of counts 1 through 10 and 13 through 22 due to vagueness. After a hearing, the
trial court granted defendant’s motion in part and dismissed counts 1 through 4, 6,
and 13 through 21, stating that because these 14 counts covered such an extensive
period of time they were vague and overbroad, making it impossible for defendant
to defend himself.
SUPREME COURT OF OHIO
{¶4} During a recess, the state filed a notice of appeal of the dismissal of
the 14 counts. After court reconvened, the state informed the court that all
proceedings must be stayed because the state had filed an appeal. After extensive
discussions were held on the record, the court recessed again to review case law
and consider the arguments of the parties with regard to the issue of jurisdiction.
Upon return, the trial court stated that the remaining counts were severable and
unrelated to the 14 counts that had been dismissed.
{¶5} The court explained that each count alleged a separate criminal act,
that there was no overlap between the time frames of the remaining 8 counts and
the 14 counts that were dismissed, and that the remaining counts were not affected
by the dismissal of the 14 counts. The trial court also held that the dismissal of the
14 counts was interlocutory and was not a final appealable order.
{¶6} The state argued that jeopardy would attach to the counts that were
dismissed if it were compelled to go forward and prosecute defendant on the
remaining counts. Accordingly, the state requested that the court continue the case
until the matter was resolved at the appellate level. After further discussion, the
trial court informed the state that if it did not proceed, the remaining counts would
be dismissed, with prejudice, for failure to prosecute. The state informed the court
that it would not go forward with the remaining counts at that time and asked that
if the remaining counts must be dismissed, they be dismissed without prejudice.
The trial court dismissed, with prejudice, the remaining counts.
{¶7} The trial court filed a judgment entry that same day, explaining what
had occurred and formalizing the rulings it had made orally. The following day,
the state filed a second notice of appeal concerning the dismissal with prejudice of
the remaining counts. The court of appeals consolidated the appeals and reversed
the trial court with respect to the 14 counts that had first been dismissed. However,
the appellate court affirmed the trial court with respect to the issue of jurisdiction
to rule on the remaining counts, finding that the state should have proceeded with
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January Term, 2002
the prosecution of the remaining 8 counts and should have addressed the
jurisdictional issue on appeal, if necessary. The court of appeals therefore affirmed
the dismissal of those 8 counts and remanded the cause to the trial court for further
proceedings on the 14 counts first dismissed.
{¶8} The matter is now before this court upon the allowance of a
discretionary appeal.
{¶9} A majority of this court has chosen to dismiss the cause as having been
improvidently allowed. I, however, respectfully dissent and would instead reverse
the judgment of the court of appeals.
{¶10} When an appeal is taken, the lower court is divested of jurisdiction,
except to take action in aid of the appeal, until the case is remanded to it by the
appellate court. State v. Rogers (1985), 17 Ohio St.3d 174, 183-184, 17 OBR 414,
478 N.E.2d 984, death penalty vacated on other grounds (1985),
474 U.S. 1002,
106 S.Ct. 518,
88 L.Ed.2d 452. Further, this court has stated that “the trial court
does retain jurisdiction over issues not inconsistent with that of the appellate court
to review, affirm, modify or reverse the appealed judgment, such as the collateral
issues like contempt, appointment of a receiver and injunction.” (Emphasis added.)
State ex rel. Special Prosecutors v. Judges, Belmont Cty. Court of Common Pleas
(1978),
55 Ohio St.2d 94, 97,
9 O.O.3d 88,
378 N.E.2d 162. Therefore, the trial
court retains jurisdiction over issues not directly related to the subject of the appeal.
{¶11} In this case, defendant was charged with 22 counts of sexual abuse
relating to two separate victims. One of the girls was alleged to have been under
the age of 13 during each of 10 separate incidents of rape charged in the indictment.
The other girl turned 13 years of age during the course of the five-year period of
alleged abuse. Defendant was charged with 19 counts of rape of a child under 13
and 3 counts of corruption of a minor for the alleged instances of sexual abuse that
occurred after the child reached the age of 13. All of the 14 counts first dismissed
charged rape.
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SUPREME COURT OF OHIO
{¶12} I would find that the remainder of the charges in the indictment,
which were dismissed with prejudice by the trial court, were directly connected
with the subject of the appeal. The state clearly planned to prosecute defendant for
all charges at once, since they all related to two victims and were all part of an
alleged ongoing pattern of sexual abuse of the two minor victims. Only one of the
8 counts that remained involved the rape of the younger victim. Thus, the trial court
dismissed all but one of the 10 charges relating to defendant’s alleged sexual abuse
of the younger victim.
{¶13} In addition, by ordering the state to go forward with its case against
defendant after the dismissal of the 14 counts, the trial court ignored the possibility
that the two young girls would have to testify twice if the state won on appeal. In
fact, nearly all of the evidence in the case would be identical, consisting of an
alleged pattern of behavior and abuse by the defendant, with only the dates
differing. I cannot conceive of a more integral and interrelated fact pattern.
{¶14} Because the remaining charges, which were dismissed with
prejudice, were directly related to the subject matter on appeal, the trial court did
not have jurisdiction to dismiss them. The trial court should have stayed the
remaining counts until the appeal was determined. Thus, the court of appeals
should have vacated as null and void the trial court’s dismissal of those counts.
{¶15} Accordingly, I respectfully dissent and would reverse the judgment
of the court of appeals and reinstate the charges that were improperly dismissed by
the trial court.
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Thomas L. Sartini, Ashtabula County Prosecuting Attorney, Ariana E.
Tarighati, Chief Assistant Prosecuting Attorney, and Angela M. Scott, Assistant
Prosecuting Attorney, for appellant.
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January Term, 2002
Ashtabula County Public Defender, Inc. and Marie Lane, Assistant Public
Defender, for appellee.
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