State v. Dumas ( 2011 )

[Cite as State v. Dumas, 2011-Ohio-2926.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95760
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
MARLENE DUMAS
DEFENDANT-APPELLANT
JUDGMENT:
DISMISSED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-524605
BEFORE: Rocco, J., Jones, P.J., and Keough, J.
RELEASED AND JOURNALIZED: June 16, 2011
-i-
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ATTORNEY FOR APPELLANT
Reuben J. Sheperd
11510 Buckeye Road
Cleveland, Ohio 44104
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Carl Sullivan
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
KENNETH A. ROCCO, J.:
{¶ 1} Defendant-appellant Marlene Dumas appeals from her
convictions for felonious assault and driving under the influence of alcohol
(“DUI”).
{¶ 2} Dumas argues her convictions are against the manifest weight of
the evidence. She contends she proved her defense of not guilty by reason of
insanity (“NGRI”). Upon a review of the record, this court is compelled to
dismiss this case for lack of jurisdiction.
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{¶ 3} The events surrounding Dumas’s convictions are not disputed.
According to the witnesses to the incident, on the afternoon of February 24,
2009, the Cleveland police received reports of a female motorist, who was
later identified as Dumas, driving her vehicle in an erratic and dangerous
manner on Interstate 90 in the westbound direction.
{¶ 4} One of those callers was the victim, Christina Rokakis. As
Rokakis proceeded along the West Shoreway, she observed Dumas scattering
construction barrels, striking the concrete barrier along the median of the
highway, and driving on only the rim of what should have been one of the
front tires.
{¶ 5} Although Rokakis increased her speed in order to outdistance
Dumas, she was forced to stop for the traffic signal at the intersection at
which the highway became Clifton Boulevard. Dumas, however, did not.
Instead, she ran into Rokakis’s rear bumper, pushing Rokakis’s car forward.
Rokakis called the police again.
{¶ 6} Dumas then reversed her vehicle and proceeded to “ram”
Rokakis’s car. Dumas repeated this activity three more times, causing
Rokakis’s car to enter into the middle of the busy intersection.
{¶ 7} At that point, Dumas got out of her vehicle and approached
Rokakis. She stated to Rokakis that “God told her to hit the car to keep her
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momentum going.” Dumas smelled of alcohol. While Dumas conversed
with Rokakis, a bystander went over to Dumas’s vehicle and removed the
keys from the ignition.
{¶ 8} By the time the police arrived at the scene, Dumas had returned
to her vehicle. Officer Patrick Becka noticed the odor, along with a bottle of
brandy and a paper cup with liquor in it in the cupholder. Dumas had
difficulty obtaining her driver’s license from her purse, her speech was
slurred and barely coherent, and she seemed “happy.”
{¶ 9} Dumas failed the sobriety tests Becka administered. Becka
testified that Dumas admitted she had purchased the brandy and had been
drinking it in her vehicle. She refused, however, to take a Breathalyzer test.
Later, Dumas telephoned her adult daughter from the police station and
explained to her that the movie director wanted her to ram the car.
{¶ 10} Dumas subsequently was indicted on five counts, charged with
two counts of felonious assault, two counts of aggravated vehicular assault,
and DUI. She originally entered a plea of not guilty to the charges.
{¶ 11} The record reflects the trial court referred Dumas to the court’s
psychiatric clinic for evaluations on three separate occasions. Although she
was found competent to stand trial, questions remained concerning her sanity
at the time of the incident. Dumas eventually changed her plea to NGRI.
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The trial court thereafter further permitted Dumas to be evaluated by an
independent psychiatrist.
{¶ 12} The psychiatric reports all indicated Dumas suffered from the
psychotic disorder labeled “Disassociative Identity Disorder,” formerly known
as “Multiple Personality Disorder.” 1 Dumas had at least seven different
personalities.
{¶ 13} Dumas’s case eventually proceeded to a trial to the bench. After
hearing the evidence, the trial court granted her motion for acquittal as to
three of the counts, but found her guilty of one count of felonious assault and
one count of DUI. The trial court sentenced Dumas to one year of conditional
community control, suspended her driver’s license for five years, and imposed
a one-thousand dollar fine.
{¶ 14} Although Dumas argues that her convictions are against the
manifest weight of the evidence, this court cannot address the merits of this
appeal, because this court lacks jurisdiction to do so. The order of sentence
issued does not constitute a final appealable order.
1The prosecution’s expert witness testified she could not render an opinion as
to whether Dumas understood the wrongfulness of her actions at the time of the
incident. Dumas’s expert witness, on the other hand, testified to a reasonable
degree of medical certainty that Dumas did not.
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{¶ 15} This court is compelled to dismiss on the authority of State v.
Baker, 119 Ohio St.3d 197, 893 N.E.2d 163, 2008-Ohio-3330, and R.C.
2929.19(B)(5), 2 and State v. Waters, Cuyahoga App. No. 85691,
2005-Ohio-5137, which was cited by both the majority and the dissent in
State v. Whitfield, 124 Ohio St.3d 319, 922 N.E.2d 182, 2010-Ohio-2. The
trial court in this case not only imposed a single term of community control
for both of Dumas’s convictions, but indicated no potential sanction for either
offense should she fail to comply with community control requirements.
{¶ 16} The facts in State v. Pierce, Cuyahoga App. No. 92922,
2010-Ohio-5467, appeal not allowed, State v. Pierce, 128 Ohio St.3d 1427,
2011-Ohio-1049, 943 N.E.2d 573, and other cases that the supreme court has
reversed3 are distinguishable because, by the time those were on appeal, the
2That section provides, in relevant part: “If the sentencing court determines
at the sentencing hearing that a community control sanction should be imposed * *
*, the court shall impose a community control sanction. The court shall notify the
offender that, if the conditions of the sanction are violated, if the offender commits a
violation of any law, or if the offender leaves this state without the permission of
the court or the offender’s probation officer, the court may impose a longer time
under the same sanction, may impose a more restrictive sanction, or may impose a
prison term on the offender and shall indicate the specific prison term that may be
imposed as a sanction for the violation, as selected by the court from the range of
prison terms for the offense pursuant to section 2929.14 of the Revised Code.”
(Emphasis added.)
3 See, e.g., State v. South, 120 Ohio St.3d 358, 2008-Ohio-6693, 899 N.E.2d
146; State v. Goldsberry, 120 Ohio St.3d 275, 2008-Ohio-6103, 898 N.E.2d 46.
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defendant had violated community control and received a prison term that
had not, in some cases, originally been pronounced.
{¶ 17} In light of the foregoing, Dumas’s appeal is dismissed.
It is ordered that appellee recover from appellant costs herein taxed.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
______________________________________
KENNETH A. ROCCO, JUDGE
LARRY A. JONES, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR