In re Charging Affidavit of Demis , 2013 Ohio 5520 ( 2013 )

[Cite as In re Charging Affidavit of Demis, 2013-Ohio-5520.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
IN RE: Hon. Sheila G. Farmer, P. J.
Hon. John W. Wise, J.
Hon. Craig R. Baldwin, J.
CHARGING AFFIDAVIT Case No. 2013 CA 00098
OF LOUIS DEMIS OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Canton Municipal
Court, Case No. 2013 CRF 110
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 16, 2013
APPEARANCES:
For Appellant Demis For Appellee City
CRAIG T. CONLEY CRAIG J. MORGAN
604 Huntington Plaza ASSISTANT PROSECUTOR
220 Market Avenue South 217 South High Street, Suite 203
Canton, Ohio 44702 Akron, Ohio 44308
Stark County, Case No. 2013 CA 00098 2
Wise, J.
{¶1} Affiant Louis Demis appeals the decision of the Canton Municipal Court
finding no probable cause to bring criminal charges in this matter.
STATEMENT OF THE FACTS AND CASE
{¶2} In December, 2012, Judge Forchione presided over State v. Studer, Stark
County Common Pleas Case No: 2012 CR 1790. In that case, Judge Forchione ordered
the Defendant (Scott Studer) to pay a fine of $5,000.00 to be forwarded to "the victims
of the Newtown, Connecticut tragedy."
{¶3} On February 1, 2013, a civil complaint was filed in the Stark County Court
of Common Pleas, alleging that the $5,000.00 fine was the property of the Stark County
Treasury and could not be forwarded to the fund representing the victims in Newtown,
Connecticut.
{¶4} On February 4, 2013, Judge Forchione requested the return of the
$5,000.00.
{¶5} On February 6, 2013, pursuant to Judge Forchione's request, the fund
returned the money to the Stark County Clerk of Courts.
{¶1} On February 28, 2013, Louis Demis filed a complaint and affidavit with the
Canton Municipal Court requesting criminal charges for a violation of R.C. §2921.41,
Theft in Office, a felony of the fourth degree. Demis' complaint arose from allegations
that the named Defendant, Francis Forchione, a Judge for the Stark County Court of
Common Pleas, unlawfully exerted control over property belonging to Stark County.
Ohio.
Stark County, Case No. 2013 CA 00098 3
{¶2} Pursuant to R.C. §2935.10(A), Demis’ complaint and affidavit was
scheduled for a probable cause hearing. To avoid any potential conflicts, a visiting
Judge, Judge Michael J. McNulty, retired from the Barberton Municipal Court, was
appointed to conduct the probable cause hearing. Craig Morgan, Deputy Chief of the
City of Akron Prosecutor’s Office and Counsel for Appellee, was appointed special
prosecutor and referred the affidavit for investigation.
{¶3} The probable cause hearing was held on April 23, 2013. Demis failed to
appear at the hearing. As a result, neither he nor Attorney Craig Conley, Counsel for
Appellant, were capable of offering any testimony to support a finding of probable
cause. Although no witnesses were called, Counsel for Appellant offered two certified
copies of journal entries into evidence as exhibits. The trial court heard arguments of
counsel.
{¶4} Based upon the information presented at the hearing and the prosecutor's
recommendation that there was insufficient evidence to support a criminal offense, the
trial court filed a judgment entry on April 23, 2013, declining to find probable cause. The
trial court found that the affidavit was not filed in good faith and that the claims made in
Demis' felony allegation were not meritorious.
{¶5} Appellant Louis Demis now appeals, assigning the following error for
review:
ASSIGNMENT OF ERROR
{¶1} “THE TRIAL COURT ERRED IN FINDING NO PROBABLE CAUSE TO
SUPPORT CRIMINAL CHARGES AGAINST FRANCIS FORCHIONE.”
Stark County, Case No. 2013 CA 00098 4
I.
{¶2} In his sole Assignment of Error, Affiant Louis Demis argues that the trial
court erred in finding no probable cause in this matter. We disagree.
{¶3} R.C. §2935.09 governs accusation by affidavit to cause arrest or
prosecution. Subsection (D) states the following:
{¶4} “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.”
{¶5} R.C. §2935.10 governs procedures upon filing of affidavit or complaint.
Subsection (A) states the following:
{¶6} “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
Stark County, Case No. 2013 CA 00098 5
refer the matter to the prosecuting attorney or other attorney charged by law with
prosecution for investigation prior to the issuance of warrant.”
{¶7} In State ex rel. Boylen v. Harmon, 107 Ohio St.3d 370, 839 N.E.2d 934,
2006-Ohio-7, ¶ 6-7, the Supreme Court of Ohio explained the required procedures as
follows:
{¶8} “Boylen's claim lacks merit. As we have consistently held, ‘R.C. 2935.09
does not mandate prosecution of all offenses charged by affidavit.’ * * * ‘While R.C.
2935.09 provides that a “private citizen having knowledge of the facts” shall file with a
judge, clerk of court, or magistrate an affidavit charging an offense committed in order to
cause the arrest or prosecution of the person charged, it must be read in pari materia
with R.C. 2935.10 which prescribes the subsequent procedure to be followed.’ * * *
{¶9} “Under R.C. 2935.10(A), if the affidavit filed under R.C. 2935.09 charges
a felony, the judge, clerk, or magistrate with whom the affidavit is filed must issue a
warrant for the arrest of the person charged in the affidavit unless the judge, clerk, or
magistrate ‘has reason to believe that it was not filed in good faith, or the claim is not
meritorious.’ ‘[O]therwise, 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.’ R.C. 2935.10(A). Boylen's affidavits charge various felonies, so R.C.
2935.10(A) requires the clerk to follow the specified procedure.”
{¶10} Pursuant to State v. Boylen, supra, and R.C. §2935.10(A), the trial court
referred Appellant's affidavit to the prosecutor's office for an investigation.
{¶11} A trial court is to review a prosecutor's decision on the issue of whether
the claims in the affidavit lacked merit and the affidavit was not filed in good faith under
Stark County, Case No. 2013 CA 00098 6
an abuse of discretion standard. State ex rel. Evans v. Columbus Dept. of Law (1998),
83 Ohio St.3d 174, 175, 699 N.E.2d 60.
{¶12} “In order to find an abuse of discretion, we must determine the trial court's
decision was unreasonable, arbitrary or unconscionable and not merely an error of law
or judgment. Blakemore v. Blakemore (1983) 5 Ohio St.3d 217, 450 N.E.2d 1140. This
Court likewise will review the trial court's decision under the same standard. In re
Slayman, Licking App. No. 08CA70, 2008-Ohio-6713.
{¶13} A probable cause hearing was held before the trial court on April 23, 2013.
Affiant Louis Demis failed to appear at the probable cause hearing. As a result, no
evidence was offered in support of the affidavit. The prosecutor presented argument
that insufficient evidence existed to support criminal charges.
{¶14} Appellant did not file a transcript of the probable cause hearing with his
appeal of the trial court decision. Absent a transcript, this Court will presume regularity
of the proceedings in the trial court. Knapp v. Edwards Laboratories (1980), 61 Ohio
St.2d 197, 400 N.E.2d 384.
{¶15} Upon review, we find the trial court did not abuse its discretion in this
matter.
Stark County, Case No. 2013 CA 00098 7
{¶16} As such, we overrule Appellant's sole Assignment of Error.
{¶17} For the foregoing reasons, the judgment of the Canton Municipal Court,
Stark County, Ohio, is affirmed.
By: Wise, J.
Farmer, P. J., and
Baldwin, J., concur.
___________________________________
HON. JOHN W. WISE
___________________________________
HON. SHEILA G. FARMER
___________________________________
HON. CRAIG R. BALDWIN
JWW/d 1203
Stark County, Case No. 2013 CA 00098 8
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN RE: :
:
CHARGING AFFIDAVIT : JUDGMENT ENTRY
:
:
OF LOUIS DEMIS : Case No. 2013 CA 00098
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Canton Municipal Court, Stark County, Ohio, is affirmed.
Costs assessed to Appellant.
___________________________________
HON. JOHN W. WISE
___________________________________
HON. SHEILA G. FARMER
___________________________________
HON. CRAIG R. BALDWIN