[Cite as State v. Murphy, 2024-Ohio-1716.]

COURT OF APPEALS

RICHLAND COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO

Plaintiff-Appellee

-vsMICHAEL S. MURPHY

Defendant-Appellant

JUDGES:

: Hon. W. Scott Gwin, PJ.

: Hon. William B. Hoffman, J.

: Hon. Andrew J. King, J.

:

:

: Case No. 2023 CA 0057

:

:

: OPINION

CHARACTER OF PROCEEDING: Appeal from the Richland County Court of 

Common Pleas, Case No. 2020 CR 0590

JUDGMENT: Dismissed

DATE OF JUDGMENT ENTRY: May 3, 2024

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JODIE SCHUMACHER MICHAEL MURPHY PRO SE

Prosecuting Attorney Northeast Ohio Correctional Center

38 South Park Street 2240 Hubbard Road

Mansfield, OH 44902 Youngstown, OH 44505
[Cite as State v. Murphy, 2024-Ohio-1716.]

Gwin, P.J.

{¶1} Appellant Michael S. Murphy appeals the September 19, 2023 judgment 

entry of the Richland County Court of Common Pleas. Appellee is the State of Ohio.

Facts & Procedural History

{¶2} Appellant was indicted on the following charges on September 17, 2020: 

possession of heroin in violation of R.C. 2925.11(A) and (C)(6)(b), a felony of the fourth 

degree, and possession of a fentanyl-related compound in violation of R.C. 2925.11(A) 

and (C)(11)(b), a felony of the fourth degree. 

{¶3} Appellant signed an “admission of guilt” form on February 28, 2022. The 

form provides that appellant agreed to withdraw his former plea of not guilty and enter a 

plea of guilty to Count 1. Further, that, as part of the plea agreement, Count 2 was 

dismissed. The trial court accepted appellant’s plea on February 28, 2022, and moved 

immediately to sentencing. 

{¶4} The trial court issued a sentencing entry on March 8, 2022, sentencing 

appellant to twelve months in prison. The trial court ordered the twelve-month sentence 

to be served concurrently to the sentence imposed on a second case appellant had been 

indicted for in 2021. 

{¶5} Appellant did not file a direct appeal of his conviction and sentence. On 

September 1, 2023, appellant filed a “motion to vacate and set aside judgment of 

conviction.” In his motion, appellant argued his trial counsel was ineffective in failing to 

ensure appellant’s plea was knowingly, intelligently, and voluntarily made. Appellee filed 

a response to appellant’s motion on September 11, 2023. 
«County» County, Case No. «CASE_NO» 3

{¶6} The trial court issued a judgment entry on September 19, 2023 denying 

appellant’s motion to vacate. 

{¶7} Appellant appeals the September 19, 2023 judgment entry of the Richland 

County Court of Common Pleas and assigns the following as error:

{¶8} “I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED 

DEFENDANT’S MOTION TO VACATE AND SET ASIDE JUDGMENT OF 

CONVICTION.” 

{¶9} Before addressing the merits of appellant’s argument, we must address the 

effect of appellant’s death on the viability of this appeal. On March 26, 2024, appellee 

filed a notice of suggestion of death of appellant. Appellee attached an obituary stating 

appellant passed away on March 13, 2024. 

{¶10} Appellate Rule 29(A) states, in pertinent part, as follows: “if a party dies after 

a notice of appeal is filed or while a proceeding is otherwise pending in the court of 

appeals, the personal representative of the deceased party may be substituted as a party 

on a motion filed by the representative, or by any party, with the clerk of the court of 

appeals * * *.” 

{¶11} The Ohio Supreme Court addressed the issue of the death of an appellant 

while an appeal of a criminal case is pending in State v. McGettrick, 31 Ohio St.3d 128, 

509 N.E.2d 378 (1987). The Supreme Court held there are two means by which to 

continue a criminal appeal when a criminal appellant dies while his or her appeal is 

pending. Id. First, if a personal representative is appointed for the decedent in 

reasonable time, that representative “may be substituted as a party on a motion by the 

decedent’s representative or the state.” Id. Second, if no personal representative is 
«County» County, Case No. «CASE_NO» 4

appointed for the decedent within a reasonable time, the “state may suggest the 

decedent’s death on the record and, upon motion by the state for substitution of a party, 

the court of appeals shall substitute any proper person * * * as party-appellant.” Id. If 

neither of these motions are filed, “the court of appeals may properly dismiss the appeal 

as moot.” Id.

{¶12} In this case, the State of Ohio filed a notice of suggestion of death. No 

motion has been made by appellee or any other party for substitution of a party for 

appellant. Accordingly, this appeal is dismissed as moot. State v. Studer, 5th Dist. 

Richland No. 13CA60, 2014-Ohio-591, State v. Mills, 5th Dist. Richland No. 2021 CA 

0054, 2022-Ohio-369. 

By Gwin, P.J.,

Hoffman, J., and

King, J., concur
[Cite as State v. Murphy, 2024-Ohio-1716.]