Dew v. Vivo ( 2012 )

[Cite as Dew v. Vivo, 2012-Ohio-3423.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE EX REL. GREGORY DEW, )
)
RELATOR, )
)
V. ) CASE NO. 12 MA 94
)
ANTHONY VIVO, MAH. CTY. CLERK OF ) OPINION
COURTS, ET AL., ) AND
) JUDGMENT ENTRY
RESPONDENTS. )
CHARACTER OF PROCEEDINGS: Complaint for Writ of Mandamus
JUDGMENT: Dismissed
APPEARANCES:
For Relator Gregory Dew, Pro-se
#543-986
T.C.I. P.O. Box 901
Leavittsburg, Ohio 44430
For Respondents Atty. Gina DeGenova Bricker
Assistant Prosecuting Attorney, Civil Div.
21 West Boardman Street, 5th Floor
Youngstown, Ohio 44503
JUDGES:
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Hon. Mary DeGenaro
Dated: July 26, 2012
[Cite as Dew v. Vivo, 2012-Ohio-3423.]
PER CURIAM.
{¶1} Relator Gregory Dew has filed a complaint for a writ of mandamus
asking this court to compel respondent Anthony Vivo, Mahoning County Clerk of
Courts, to accept for filing criminal complaints that he is attempting to file against one
of the assistant prosecutors who prosecuted his criminal case and a detective who
conducted the investigation that led to his arrest. Vivo has filed a Civ.R. 12(B)(6)
motion to dismiss Dew’s action for failing to state a claim upon which relief can be
granted.
{¶2} Dew was convicted of four counts of rape, two counts of gross sexual
imposition, and one count of corruption of a minor on April 1, 2008, in the Mahoning
County Court of Common Pleas, following a jury trial. The trial court sentenced him
to an aggregate term of 43 years of imprisonment. On December 1, 2009, we
reversed and vacated the trial court’s judgment in part, holding that one count of
gross sexual imposition and one count of rape were not supported by sufficient
evidence because the State failed to set forth evidence of “force or threat of force.”
We upheld the remainder of Dew's convictions, resulting in a 31.5 year sentence.
State v. Dew, 7th Dist. No. 08 MA 62, 2009–Ohio–6537.
{¶3} Dew attempted to file two criminal complaints with supporting affidavits
with the Mahoning County Clerk of Court’s office. Each of the complaints was titled
“COMPLAINT BY INDIVIDUAL (CRIM.R. 3)” and signed by Dew as the complainant.
One charged one of the assistant prosecutors who prosecuted his criminal case with
unlawfully altering an intercepted recording and tampering with evidence. The
attached affidavit accused the assistant prosecutor of redacting exculpatory evidence
from wiretap recordings played in court under the guise of Rape Shield protections.
The other complaint charged one of the investigators with perjury. The affidavit
attached to that complaint accused one of the investigators of perjuring himself at
Dew’s trial regarding Dew’s alleged use of force or threat of force over the victims.
The clerk of court’s office refused to accept the filings. Dew then filed this original
action seeking to compel the clerk of courts to accept the filings.
{¶4} The requisites for mandamus are well established: (1) the relator must
have a clear legal right to the requested relief; (2) the respondent must have a clear
-2-
legal duty to perform the requested act; and (3) the relator has no plain and adequate
remedy at law. State ex rel. Frease v. Wellington, 7th Dist. No. 02-CA-54, 2002-Ohio-
7455, at ¶4; State ex rel. Hodges v. Taft, 64 Ohio St.3d 1, 3, 591 N.E.2d 1186 (1992).
{¶5} R.C. 2935.09(D) provides a formal mechanism by which a private
citizen can seek to have criminal charges brought against someone:
A private citizen having knowledge of the facts who seeks to
cause an arrest or prosecution under this section may file an affidavit
charging the offense committed with a reviewing official for the purpose
of review to determine if a complaint should be filed by the prosecuting
attorney or attorney charged by law with the prosecution of offenses in
the court or before the magistrate. A private citizen may file an affidavit
charging the offense committed with the clerk of a court of record
before or after the normal business hours of the reviewing officials if the
clerk’s office is open at those times. A clerk who receives an affidavit
before or after the normal business hours of the reviewing officials shall
forward it to a reviewing official when the reviewing official's normal
business hours resume.
{¶6} As counsel for Vivo aptly points out, there is case law addressing the
same situation presented in this case. In State ex rel. Muff v. Wollenberg, 5th Dist.
No. 08-CA-11, 2008-Ohio-4699, the relator presented a criminal complaint to
respondent against a named individual for tampering with evidence, with an affidavit
attached in support. The Fifth District noted that relator had not conformed to R.C.
2935.09(D)’s requirements:
R.C. 2935.09(D) allows, in limited circumstances, a private
citizen to file an affidavit charging an offense with the clerk of courts for
the purpose of having a reviewing official determine whether a
complaint should be filed. In the instant case, Relator seeks to file a
complaint with an affidavit attached. The statute distinguishes a
-3-
complaint from an affidavit. The plain language of this code section
does not permit the filing of a complaint by a private citizen; therefore,
Relator has not demonstrated he has a clear legal right to have his
complaint filed. Nor has Relator demonstrated Respondent has a clear
legal duty to file a complaint issued by a private citizen under this
statute.
Id. at ¶12.
{¶7} Just as in Maxwell, Dew here tried to file a complaint, with an affidavit
attached. And as the Fifth District pointed out, the plain language of R.C. 2935.09(D)
does not permit the filing of a complaint by a private citizen. Consequently, Dew
cannot establish that he has a right to the relief requested and his complaint is
dismissed.
{¶8} Costs taxed against Dew. Final order. Clerk to serve notice as
provided by the Civil Rules.
Donofrio, J. concurs.
Vukovich, J. concurs.
DeGenaro, J. concurs.