Hicks v. State ( 2018 )

[Cite as Hicks v. State, 2018-Ohio-5298.]
IN THE COURT OF APPEALS OF OHIO
TWELFTH APPELLATE DISTRICT
CLERMONT COUNTY
Christopher Hicks, :
Appellant, :
v. : Case No. CA2018-04-022
State of Ohio et al., :
(ACCELERATED CALENDAR)
Appellees. :
D E C I S I O N
Rendered on: 12/28/2018
On brief: Brafford & Rivello, and Suellen M. Brafford, for
appellant.
On brief: Michael DeWine, Attorney General, and Matthew J.
Donahue, for appellee State of Ohio.
On brief: Strauss Troy Co., LPA, and Christopher R.
McDowell, for appellee Linda Fraley.
APPEAL from the Clermont County Municipal Court
Case No. 2018 PC 00002
TYACK, J.
{¶ 1} Christopher Hicks is appealing from the failure of a judge to authorize the
pursuit of criminal charges against the Clermont County Auditor. He assigns two errors for
our consideration:
[I.] THE VISITING JUDGE IMPROPERLY HELD A HEARING
AND SHOULD HAVE FOUND THE PRIVATE CITIZEN
AFFIDAVIT FILING MERITORIOUS ON ITS FACE AND
ISSUED A WARRANT FOR APPELLEE FRALEY'S ARREST OR
IN THE ALTERNATIVE REFERRED THE CASE TO A SPECIAL
Clermont CA2018-04-022
PROSECUTING ATTORNEY FOR FURTHER
INVESTIGATION.
[II.] THE VISITING JUDGE IMPROPERLY DISMISSED THE
PRIVATE CITIZEN AFFIDAVIT CONTRARY TO THE
STATUTORY TEXT OF OHIO REVISED CODE 2935.09 AND
2935.10.
{¶ 2} Addressing the first assignment of error, we do not sanction the position that,
merely because a private citizen files an affidavit alleging that a public office holder has
engaged in some sort of misconduct, an arrest warrant must be forthcoming.
{¶ 3} In the present case, a visiting judge was appointed to conduct proceedings. The
prosecuting attorney for Clermont County asked to be recused because the prosecuting
attorney serves as the prosecuting authority.
{¶ 4} The visiting judge scheduled a hearing on the merits of the allegation that the
Clermont County Auditor had engaged in illegal conduct with respect to the handling of the
employment of a young man who briefly was the auditor's stepson. At the conclusion of the
hearing conducted in the presence of members of the office of the Ohio Attorney General, the
judge determined that pursuance of criminal charges was not warranted. The office of the
Ohio Attorney General concurred in the determination of the judge.
{¶ 5} We find no fault in a judge utilizing a public hearing as the way to develop the
facts that support or refute the allegations in the affidavit filed by a private citizen seeking to
pursue criminal charges against a public office holder.
{¶ 6} The first assignment of error is overruled.
{¶ 7} Turning to the second assignment of error, R.C. 2935.09(D) reads:
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.
{¶ 8} R.C. 2935.09(A) reads:
Clermont CA2018-04-022
As used in this section, “reviewing official” means a judge of a
court of record, the prosecuting attorney or attorney charged by
law with the prosecution of offenses in a court or before a
magistrate, or a magistrate.
{¶ 9} The affidavit at issue here was filed with a clerk of courts and provided both to
a judge and to the office of the Ohio Attorney General. Clearly R.C. 2935.09 was not violated.
{¶ 10} R.C. 2935.10(A) reads:
Upon the filing of an affidavit or complaint as provided by
section 2935.09 of the Revised Code, if it charges the
commission of a felony, such judge, clerk, or magistrate, unless
he has reason to believe that it was not filed in good faith, or the
claim is not meritorious, shall forthwith issue a warrant for the
arrest of the person charged in the affidavit, and directed to a
peace officer; otherwise he shall forthwith refer the matter to the
prosecuting attorney or other attorney charged by law with
prosecution for investigation prior to the issuance of warrant.
{¶ 11} Here, a judge conducted a hearing in open court. The visiting judge assigned
to the case had only two options under R.C. 2935.10. One option is to issue a warrant. The
second is to formally refer the matter to the prosecuting attorney for investigation or further
investigation. Hillman v. O'Shaughnessy, 10th Dist. No. 16AP-571, 2017-Ohio-489, ¶ 6, citing
Hillman v. Larrison, 10th Dist. No. 15AP-730, 2016-Ohio-666, ¶ 14. The visiting judge did
neither in this case. We therefore find that the visiting judge did not follow the requirements
of R.C. 2935.10.
{¶ 12} We, therefore, sustain the second assignment of error. We vacate the trial
court's entry dismissing the affidavit and remand the case to the trial court to formally refer
the case to the prosecuting attorney, in this case the office of the Ohio Attorney General, to
take whatever action it deems appropriate.
Judgment vacated; cause remanded.
KLATT and SADLER, JJ., concur.
Tyack, J., of the Tenth Appellate District, sitting by assignment of the Chief Justice,
pursuant to Section 5(A)(3), Article IV of the Ohio Constitution.
Klatt, J., of the Tenth Appellate District, sitting by assignment of the Chief Justice,
pursuant to Section 5(A)(3), Article IV of the Ohio Constitution.
Sadler, J., of the Tenth Appellate District, sitting by assignment of the Chief Justice,
pursuant to Section 5(A)(3), Article IV of the Ohio Constitution.