State v. Allenbaugh

[Cite as State v. Allenbaugh, 2022-Ohio-582.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY
STATE OF OHIO, CASE NO. 2021-A-0027
Plaintiff-Appellee,
Criminal Appeal from the
-v- Municipal Court
MARK H. ALLENBAUGH,
Trial Court No. 2017 TRD 04031
Defendant-Appellant.
OPINION
Decided: February 28, 2022
Judgment: Modified and affirmed as modified
Michael Franklin, Ashtabula City Solicitor, and Lori B. Lamer, Assistant Ashtabula City
Solicitor, 110 West 44th Street, Ashtabula, OH 44004 (For Plaintiff-Appellee).
Mark H. Allenbaugh, pro se, 2934 Shirley Street, Ashtabula, OH 44004 (Defendant-
Appellant).
MATT LYNCH, J.
{¶1} Defendant-appellant, Mark H. Allenbaugh, appeals the August 30, 2021,
Judgment Entry of the Ashtabula Municipal Court, (1) dismissing, with prejudice, a single
charge of violating R.C. 4511.21(B)(1)(a) (speeding in a school zone), and (2) finding that
“probable cause existed for the filing of the citation.” Allenbaugh challenges the probable
cause finding. For the following reasons, we modify the judgment of the municipal court
by vacating the finding of probable cause and affirm as modified.
{¶2} On December 1, 2017, Allenbaugh was charged with a violation of R.C.
4511.21(B)(1)(a). The matter proceeded to trial resulting in his conviction on December
10, 2018.
{¶3} In State v. Allenbaugh, 2020-Ohio-68, 151 N.E.3d 50 (11th Dist.), this court
reversed the conviction on the grounds that the municipal court erred by holding a Daubert
hearing on the reliability of the TruSpeed Laser in Allenbaugh’s absence: “Allenbaugh’s
absence at the Daubert hearing deprived him of a fair and just hearing inasmuch as his
conviction was based on Trooper Balcomb’s laser reading of his speed and that testimony
would not have been admissible but for the foundation laid at the November 1, 2018
[Daubert] hearing.” Id. at ¶ 46. The matter was remanded for further proceedings
consistent with our opinion.
{¶4} On July 19, 2021, Allenbaugh filed a Motion to Dismiss based on the
violation of his speedy trial rights and/or the statute of limitations. A hearing on the Motion
to Dismiss was held on August 27, 2021.
{¶5} On August 30, 2021, the trial court issued the following Judgment Entry:
Upon careful consideration the case will be dismissed with prejudice,
although probable cause existed for the filing of the citation. The
Court makes this finding based upon the testimony at trial of Trooper
Scotty Balcomb, who had 18 years of experience and testified that
his visual observation of defendant’s speed was 38-40 mph in a 20
mph school zone.
{¶6} On September 29, 2021, Allenbaugh filed a Notice of Appeal. On appeal,
he raises the following assignment of error: “The trial court erred by making a sua sponte
finding of probable cause for issuance of the speeding citation when dismissing the case
with prejudice.”
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{¶7} Allenbaugh asserts that the municipal court erred as a matter of law by
making a probable cause determination. Whether Trooper Balcomb’s trial testimony
supports a probable cause finding is not before this court. Accordingly, we consider the
assigned error de novo. State v. Codeluppi, 139 Ohio St.3d 165, 2014-Ohio-1574, 10
N.E.3d 691, ¶ 9 (“questions of law are to be reviewed de novo”).
{¶8} Specifically, Allenbaugh argues that no preliminary hearing was ever held
to establish probable cause, which, in any case, would only have been appropriate if he
were facing a felony charge. See Crim.R. 5(B); State v. Nelson, 51 Ohio App.2d 31, 365
N.E.2d 1268 (8th Dist.1977), paragraph two of the syllabus (“[a]t a preliminary hearing,
the Municipal Court is limited to determining probable cause and binding the accused
over to the Court of Common Pleas, or ordering the accused discharged, or finding
probable cause to believe the accused committed a misdemeanor and retaining the case
for trial after causing a complaint to issue charging the accused with a misdemeanor”).
Stated otherwise, the probable cause determination authorized by Criminal Rule 5(B) is
not applicable in the present case and there is no other rule authorizing the municipal
court to make such a determination.
{¶9} Allenbaugh also argues that reliance on Trooper Balcomb’s trial testimony
as a substitute for a preliminary hearing was improper inasmuch as his conviction at trial
was reversed and the case remanded for further proceedings at the point where error
occurred, i.e., at the Daubert hearing to establish the reliability of the laser speed gun.
Armstrong v. Marathon Oil Co., 32 Ohio St.3d 397, 513 N.E.2d 776 (1987), paragraph
seven of the syllabus (“[w]hen a cause of action is reinstated by a court of appeals and
remanded for further proceedings to the trial court, such reinstatement is in statu quo
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ante, and the lower court is required to proceed from the point at which the error
occurred”).
{¶10} In support of his arguments, Allenbaugh relies on two decisions from this
court. In State v. Temple, 11th Dist. Trumbull No. 3521, 1985 WL 10216, the defendant
was charged with speeding in municipal court. At trial, the prosecutor was not able to go
forward because of a lack of witnesses. The municipal court dismissed the charge, but
“also made a finding that probable cause had been shown by testimony taken at a
previous hearing” (the character of which is not further described). Id. at *1.
{¶11} On appeal, this court affirmed the judgment but “modified [it] to exclude the
determination and specific finding of probable cause.” We explained:
In the present case, no felony matter was charged, nor any
preliminary hearing conducted that resulted in a determination of
probable cause that a misdemeanor was committed. There is no
other legal basis under existing law in Ohio that would authorize the
trial court here to make a determination of probable cause in a
situation involving a traffic offense that at best is a minor
misdemeanor. Thus, it was improper for the trial court to make such
a finding of probable cause in its judgment entry.
Id.
{¶12} In State v. Colley, 11th Dist. Trumbull No. 3508, 1985 WL 10213, the
prosecutor moved to dismiss a charge of petty theft with a finding of probable cause for
filing the complaint. Finding “no record to base a probable cause finding,” this court
modified the judgment by deleting “and the case will be dismissed with probable cause
for the filing of the Complaint,” and thereupon affirmed the judgment as modified. Id. at
*1.
{¶13} The State responds that the municipal court did not commit reversible error
inasmuch as the probable cause “finding in no way [a]ffects Appellant’s rights, reputation
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or ability to continue on with his daily life or with any repercussions to life, liberty or the
pursuit of happiness.” Appellee’s brief at 4. We agree to the extent that the judgment of
dismissal may be modified in the manner of Temple and Colley and affirmed as modified.
{¶14} The sole assignment of error has merit to the extent indicated above.
{¶15} For the forgoing reasons, the August 30, 2021, Judgment Entry of the
Ashtabula Municipal Court is modified to vacate the finding that probable cause existed
for filing the citation. In all other respects the Judgment is affirmed. Costs to be taxed
against the appellee.
CYNTHIA WESTCOTT RICE, J.,
JOHN J. EKLUND, J.,
concur.
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