State v. Plas

[Cite as State v. Plas, 2026-Ohio-3788.] STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN ) STATE OF OHIO C.A. No. 25CA012327 Appellee v. APPEAL FROM JUDGMENT ENTERED IN THE MATTHEW PLAS COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO Appellant CASE No. 24CR110544 DECISION AND JOURNAL ENTRY Dated: September 28, 2026 HENSAL, Presiding Judge. {¶1} Matthew Plas has attempted to appeal the denial of his motion to dismiss the indictment on double jeopardy and due process grounds. For the following reasons, this Court dismisses the appeal. I. {¶2} In 2008, Mr. Plas was indicted for and pleaded guilty to five counts kidnapping, three counts of aggravated robbery, two counts of felonious assault, as well as counts of attempted rape, tampering with evidence, having weapons under disability, gross sexual imposition, and carrying a concealed weapon. Some of the offenses also had firearm specifications. The trial court accepted Mr. Plas’s plea, found him guilty of the offenses, and sentenced him to a total of 33 years imprisonment. {¶3} In 2019, the victim of Mr. Plas’s offenses died and the coroner determined that it was from injuries suffered during the offenses. The Grand Jury subsequently indicted Mr. Plas on  2 five counts of felony murder and three counts of aggravated felony murder. Mr. Plas moved to dismiss the indictment on speedy trial and related due process grounds. He also separately moved to dismiss the indictment on double jeopardy grounds. Regarding the second motion, the trial court analyzed whether a negotiated plea existed between Mr. Plas and the State but determined that one did not. It also found there was no evidence that any promise or agreement had been made to Mr. Plas that could be consideration or an inducement for his plea. The Court, therefore, determined that the State was not barred from bringing additional charges against Mr. Plas and denied his motion. Mr. Plas has appealed the denial of his motion to dismiss on double jeopardy grounds, assigning as error that the trial court incorrectly denied the motion. II. ASSIGNMENT OF ERROR THE TRIAL COURT ERRED IN DENYING DEFENDANT’S MOTION TO DISMISS THE INDICTMENT. {¶4} In his assignment of error, Mr. Plas argues that the trial court incorrectly found that he did not have an agreement with the State regarding his plea as to the original charges. The State argues that Mr. Plas’s argument is premature because the trial court’s entry was not a final appealable order and, thus, this Court does not have jurisdiction over the appeal. “Generally, a denial of a motion to dismiss in a criminal or civil case is not considered a final appealable order because the case will proceed to trial. If an adverse judgment is rendered, the denial of the motion to dismiss may be an assignment of error on [direct] appeal.” State v. Hartman, 2017-Ohio-1089, ¶ 11 (9th Dist.), quoting In re S.H., 2010-Ohio-5741, ¶ 19 (5th Dist.). {¶5} Mr. Plas’s motion was captioned as a “Motion to Dismiss on Double Jeopardy[.]” In State v. Anderson, 2014-Ohio-542, the Ohio Supreme Court determined that the denial of a motion to dismiss on double jeopardy grounds is a final, appealable order. Id. at ¶ 60. It explained  3 that such motions qualify as a provisional remedy under Revised Code Section 2505.02(A)(3) and that a decision on the motion “determines the action” under Section 2505.02(B)(4)(a). Id. at ¶ 51- 52. Regarding whether the appealing party would be denied meaningful review by waiting until after final judgment to appeal, the Court explained that improperly forcing someone to experience a second trial is, in itself, an infringement of the protection offered by the Constitution. Id. at ¶ 55. Because a post-conviction appeal would not protect a defendant from going through a second trial for the same offense, the Court concluded that “an accused would not be afforded a meaningful review . . . if [he] must wait for final judgment as to all proceedings in order to secure review of the double-jeopardy decision.” Id. at ¶ 59. {¶6} Although including “Double Jeopardy” in the caption of his motion, the substance of Mr. Plas’s argument was not based on double jeopardy principles. Instead, Mr. Plas argued that he could not be tried for murder because of his agreement to plead guilty to the other offenses. Mr. Plas acknowledges in his appellate brief that, although his motion was stylized as a motion to dismiss for double jeopardy, his argument “was a due process one . . . .” In State v. Azeen, 2021- Ohio-1735, the Ohio Supreme Court noted the difference between a prosecution that is barred under the Double Jeopardy Clause and one that is prevented based on “principles of contract law . . . .” Id. at ¶ 17. It explained that “[a] defendant who has entered a plea to a lesser offense prior to the victim’s death has not yet been placed in jeopardy for homicide; an essential element of any homicide offense—the death of the victim—has not yet occurred.” Id. at ¶ 16. Nevertheless, if the defendant has been induced to enter a plea based on an express or implied promise by the prosecutor not to further prosecute should the victim die, the agreement may bar the second prosecution. Id. at ¶ 19-23.  4 {¶7} The Double Jeopardy Clause includes specific protection against the “risk” of a second conviction. Abney v. United States, 431 U.S. 651, 661 (1977). “Because of this focus on the ‘risk’ of conviction, the guarantee against double jeopardy assures an individual that, among other things, he will not be forced, with certain exceptions, to endure the personal strain, public embarrassment, and expense of a criminal trial more than once for the same offense.” Id. There is no similar protection when the State has only agreed not to bring additional charges against a defendant, at least not in this case where there was no written agreement between the parties. But see State v. Soto, 2025-Ohio-4517, ¶ 18 (3d Dist.) (noting that defendant’s argument was that he contracted for assurance of not being reindicted or going through criminal justice process again). Upon review of the record, we cannot say that Mr. Plas “would not be afforded a meaningful or effective remedy by an appeal following final judgment . . . in the action.” R.C. 2505.02(B)(4)(b). The denial of his motion to dismiss, therefore, is not an order that grants or denies a provisional remedy under Section 2505.02(B)(4). It also does not meet the requirements of any other subsection of Section 2505.02(B). Accordingly, we conclude that the trial court’s decision is not a final, appealable order and that Mr. Plas’s attempted appeal must be dismissed. III. {¶8} The trial court’s decision is not a final appealable order. Mr. Plas’s attempted appeal is dismissed. Appeal dismissed.  5 Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellant. JENNIFER HENSAL FOR THE COURT SUTTON, J. STEVENSON, J. CONCUR. APPEARANCES: RUSSELL S. BENSING, Attorney at Law, for Appellant. ANTHONY CILLO, Prosecuting Attorney, and MATTHEW A. KERN, Assistant Prosecuting Attorney, for Appellee.