The Summit County Prosecuting Attorney had the right to appeal a judgment declaring a former Akron police captain innocent of murdering his wife, and a common pleas court judge had the right to send him back to prison, the Ohio Supreme Court ruled today.

The Supreme Court voted 5-1 to deny Douglas Prade a writ of prohibition, which he sought to block a ruling by the Ninth District Court of Appeals that overturned a Summit County Common Pleas Court’s postconviction relief judgment. The Ninth District’s ruling reversed the judgment in Prade’s favor, and resulted in the trial court reinstating Prade’s original conviction and sentence. He was returned to prison to continue to serve his life sentence, which started in 1998.

Prade had challenged the right of the prosecutor to appeal the judgment that released him and the Ninth District’s authority to hear the prosecutor’s appeal. In a per curiam decision, the Supreme Court found that state law gives the prosecutor a right to appeal Prade’s petition for postconviction relief.

Justice William M. O’Neill dissented, writing that through updated DNA testing, Prade discredited the only physical evidence the prosecution had, and Prade is entitled to a new trial.

Released and Resentenced
In 1998, Prade was convicted and sentenced to life in prison for the 1997 aggravated murder of his former wife, Dr. Margo Prade. The trial evidence included a bite mark the killer made on Dr. Prade’s arm through her lab coat. Because there was a large amount of her blood on the coat, the DNA testing was performed on a portion of the coat around the bite mark, and the results were inconclusive. The prosecution used a comparison of the bite mark to a casting of Prade’s teeth to assert it was Prade who bit his wife.

Prade appealed his conviction, the Ninth District affirmed his sentence in 2000, and the Supreme Court declined to hear an appeal of the ruling. In 2008, he filed an application in common pleas court for new DNA testing of the lab coat, citing major advances in DNA testing since his trial. The trial court denied it and the Ninth District upheld the decision. In 2010, the Supreme Court ordered the trial court to have the coat and other items retested.

Based on the new results, Prade filed his request for postconviction relief or a new trial and, in 2013, a common pleas court found the DNA test results and other evidence proved he was actually innocent. He was released from prison in early 2013.

The Summit County prosecutor immediately filed an appeal, and the Ninth District reversed the trial court’s decision. It remanded the case to the common pleas court, where another judge was assigned to the case. That judge ordered Prade’s conviction reinstated and his return to prison, which is where he has been since July 2014. The judge also denied Prade’s request for a new trial.

Prade filed his request to invalidate the Ninth District’s decision to send his case back to trial court in May 2016. The Supreme Court rejected a request by the prosecutor to dismiss the case, and the Court considered the merits of his claim.

Prade Challenges Court’s Interpretation of Law
Typically a prosecutor cannot appeal a “final verdict” in favor of a criminal defendant. But R.C. 2945.67(A) provides for specific types of challenges that can be made. The law states:  “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 ... 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 or of the juvenile court in a delinquency case.”

In Prade’s case he was granted a motion for postconviction relief. He contends the phrase in the law “except the final verdict” applies to all the options in the statute, and since his grant of relief was a “final verdict,” the prosecutor cannot appeal. The prosecutor maintains the phrase “except the final verdict” only applies to the portion of the law where the prosecutor “may appeal by leave of court.”

The Supreme Court rejected Prade’s interpretation, stating it does not apply to the four situations listed as “appeals as of right” that include a right to appeal a postconviction relief decision. The Court stated that it ruled similarly in its 1991 State v. Order of Eagles Aerie 0337 Buckeye decision, and added that decision was consistent with earlier decisions.

Verdict Actually Two Decisions, Prade Maintains
The Court also rejected a second line of argument by Prade that the trial court actually issued two decisions — the finding of actual innocence and the general grant of postconviction relief. Under this scenario, Prade suggested the prosecutor did have the right to appeal the postconviction relief, but the actual innocence declaration was a “final verdict,” which cannot be appealed.

The opinion explained that a “verdict” occurs when guilt or innocence is determined at the initial trial of the defendant. Any subsequent decision about guilt or innocence is not a verdict and is not covered by the law.

The Court concluded the Ninth District had jurisdiction to rule on the state’s appeal and the authority to send it back to the trial court. And the trial court had the authority, on remand, to consider his case and resentence him to prison.

Justices Terrence O’Donnell, Sharon L. Kennedy, Judith L. French, Patrick F. Fischer, R. Patrick DeWine joined the majority opinion.

Dissent Maintains Jury Needs to Hear Case
In his dissent, Justice O’Neill agreed with the prosecutor’s right to appeal the postconviction relief ruling and the Ninth District’s authority to consider it. However, once the case was remanded, he maintains the case should have gone to a jury. He noted the newer DNA evidence excluded Prade as the source of the DNA while finding there was male DNA in the lab coat along with Dr. Prade’s blood.

“To remedy what I consider to be an astounding miscarriage of justice, I would grant a peremptory writ of prohibition directing the trial court to vacate its March 11, 2016 order reconsidering and denying Prade’s motion for a new trial and to reinstate the January 29, 2013 order for a new trial,” he wrote.

Chief Justice Maureen O’Connor did not participate in the case.

2016-0686. State ex rel. Prade v. Ninth District Court of Appeals, Slip Opinion No. 2017-Ohio-7651.

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