State v. Brown, Unpublished Decision (9-3-1999)

This is an appeal by the State of Ohio from a discharge pursuant to Ohio's Speedy Trial statute. Although the State properly served notice of its appeal upon Brown's trial counsel, Brown's trial counsel has notified this court that she lost contact with her client before he was advised of the pendency of the State's appeal, and has been unable to reach her client, even though she has made attempts to do so. She has further advised this court that it was never contemplated that she would represent Brown in appellate proceedings. Given this unusual situation, we entered an order, on May 4, 1999, requiring the State to use its best efforts to locate Brown, and to serve him with notice of this appeal, and with its original brief. On June 3, 1999, the State filed a notice of its efforts to locate Brown, noting that it had been unable to do so. It requested an order requiring Brown's trial counsel to call Brown at a voice mail pager number. We declined to enter the order, and put on a further order, on June 16, 1999, requiring the State to show cause, within twenty days, why this appeal should not be dismissed, upon the grounds that Brown has not been accorded his constitutional right to notice and an opportunity to be heard. The State has not responded to this order. The due process right to notice and an opportunity to be heard is heightened in a criminal proceeding, where the litigant is subject to a potential loss of liberty. If a civil defendant, having prevailed in the trial court, were to disappear before the opposing party took an appeal, we might be inclined to find that notice to the civil defendant's trial counsel would be sufficient, under those circumstances. However, we are inclined not to do so in a criminal case, absent some indication that the criminal defendant had actual notice of the State's intention to appeal. Accordingly, this appeal is DISMISSED, without prejudice to reinstating the State's appeal should the State subsequently succeed in locating Brown, so that he can be served with notice of the appeal. SO ORDERED. THOMAS J. GRADY, Presiding Judge WILLIAM H. WOLFF, JR., Judge MIKE FAIN, Judge Copies mailed to: John J. Amarante, Paula S. Hughes, Hon. John Kessler