Rocky River v. Ghaster ( 2012 )

[Cite as Rocky River v. Ghaster, 2012-Ohio-177.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96754
CITY OF ROCKY RIVER
PLAINTIFF-APPELLANT
vs.
PAMELA A. GHASTER
DEFENDANT-APPELLEE
JUDGMENT:
DISMISSED
Criminal Appeal from the
Rocky River Municipal Court
Case Nos. 07 CRB 1992 and 07 CRB 2173
BEFORE: E. Gallagher, J., Celebrezze, P.J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: January 19, 2012
ATTORNEYS FOR APPELLANT
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Andrew E. Bemer
Director of Rocky River Law Dept.
By: Michael J. O’Shea
Rocky River Law Dept.
21012 Hilliard Blvd.
Rocky River, Ohio 44116
ATTORNEY FOR APPELLEE
Kenneth D. Myers
6100 Oak Tree Blvd.
Suite 200
Independence, Ohio 44131
EILEEN A. GALLAGHER, J.:
{¶ 1} Appellant, the city of Rocky River, appeals a Rocky River
Municipal Court judgment wherein the court found that the prosecuting
attorney had no standing to move the court to hold a probation violation
hearing in regard to appellee Pamela Ghaster and struck from the record the
prosecutor’s corresponding motion. On appeal, the prosecutor argues that it
has the authority to report and request hearings for community control
sanction violations. Sua sponte we dismiss this appeal due to the failure of
the city to comply with R.C. 2945.67 and App.R. 5(C).
{¶ 2} The record reveals that on April 14, 2011, the prosecutor filed a
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“report of probation violation and motion for court to conduct a probation
violation hearing,” wherein the prosecutor moved the trial court to “issue a
probation violation complaint and, thereafter, conduct a probation violation
hearing for the [appellee].” The trial court denied the prosecutor’s motion
on April 18, 2011, holding that the prosecutor lacked the requisite standing
to present such a motion. The court further struck the prosecutor’s motion
from the record. On April 19, 2011, the prosecutor filed a motion for
reconsideration, that the trial court denied on April 20, 2011. The
prosecutor subsequently brought the present appeal of both the trial court’s
April 18, 2011 decision denying the prosecutor’s motion and the court’s April
20, 2011 denial of the motion to reconsider.
{¶ 3} R.C. 2945.67 provides the court of appeals with jurisdiction to
hear appeals taken by the State and provides:
(A) A prosecuting attorney, village solicitor, city director of law,
or the attorney general may appeal as a matter of right any
decision of a trial court in a criminal case, or any decision of a
juvenile court in a delinquency 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 postconviction relief pursuant
to sections 2953.21 to 2953.24 of the Revised Code, 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
addition to any other right to appeal under this section or any
other provision of law, a prosecuting attorney, city director of
law, village solicitor, or similar chief legal officer of a municipal
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corporation, or the attorney general may appeal, in accordance
with section 2953.08 of the Revised Code, a sentence imposed
upon a person who is convicted of or pleads guilty to a felony.
{¶ 4} If the city seeks to obtain a discretionary review of a ruling of
substantive law, the city must follow the proper procedure and comply with
App.R. 5(C), which requires the city to obtain leave of court to appeal. State
v. Selinka, 8th Dist. No. 89120, 2007-Ohio-5435, 2007 WL 2949296, ¶ 9.
{¶ 5} “Because R.C. 2945.67 creates an exception to the general rule
against the State taking an appeal as of right in a criminal case, we believe
the statute must be strictly construed and any appeal taken by the state as
of right strictly comply with the terms of the statute.” State v. Rivers, 8th
Dist. No. 86663, 2006-Ohio-3949, 2006 WL 2170602, ¶ 14, quoting State v.
Sanders, 2d Dist. No. 94-CA-48 (Nov. 30, 1994).
{¶ 6} In order for this court to have jurisdiction, there must be full
compliance with the mandatory provisions of the statute. Absent full
compliance the appeal must be dismissed. State v. Padavick, 8th Dist. No.
49585, 1985 WL 8404 (Nov. 1, 1985), citing State v. Leary, 47 Ohio App.2d
1, 351 N.E.2d 793 (8th Dist. 1975).
{¶ 7} In the case sub judice, the record reveals that the prosecutor failed
to seek leave to appeal the trial court’s decision on substantive law in
accordance with R.C. 2945.67 and App.R. 5(C). Therefore, we find that the
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prosecutor’s appeal is statutorily barred. We are without jurisdiction to hear
this appeal.
{¶ 8} Accordingly, appeal 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.
EILEEN A. GALLAGHER, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and
SEAN C. GALLAGHER, J., CONCUR