Hillman v. O'Shaughnessy

[Cite as Hillman v. O'Shaughnessy, 2017-Ohio-489.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Robert L. Hillman, :
Plaintiff-Appellant, : No. 16AP-571
(C.P.C. No. 16MS-365)
v. :
(ACCELERATED CALENDAR)
Maryellen O'Shaughnessy, :
Franklin County Clerk of Courts,
:
Defendant-Appellee.
:
D E C I S I O N
Rendered on February 9, 2017
On brief: Robert L. Hillman, pro se.
APPEAL from the Franklin County Court of Common Pleas
PER CURIAM.
{¶ 1} Plaintiff-appellant, Robert L. Hillman, appeals from a judgment of the
Franklin County Court of Common Pleas addressing his affidavit filed pursuant to
R.C. 2935.09 and 2935.10. For the following reasons, we affirm.
I. Factual and Procedural Background
{¶ 2} On July 8, 2016, Hillman, an inmate at the Chillicothe Correctional
Institution, filed an affidavit pursuant to R.C. 2935.09 and 2935.10 accusing defendant-
appellee, Maryellen O'Shaughnessy, Franklin County Clerk of Courts ("Clerk of Courts"),
of committing multiple felonies. Specifically, he alleged the Clerk of Courts intentionally
"misfiled" a previous affidavit in which Hillman accused a Columbus police officer of
committing perjury during Hillman's criminal trial. (Hillman Aff. at 2.) On July 14, 2016,
the trial court concluded that Hillman's allegations of criminal activity by the Clerk of
No. 16AP-571 2
Courts have no legal merit, and it therefore declined to issue a warrant for her arrest.
Instead, the trial court referred the matter to the prosecuting attorney for investigation.
{¶ 3} Hillman timely appeals.
II. Assignments of Error
{¶ 4} Hillman assigns the following errors for our review:
[1.] The trial court judge committed an act of fraud, and plain
and prejudicial error when it denied appellant procedural due
process, and ruled upon a lack of probable cause contained in
his affidavit prior to submitting the affidavit to the
prosecuting attorney for investigation in accordance with R.C.
2935.09 and R.C. 2935.10 eliminating the prosecutors
function.
[2.] The trial court denied the appellant due process and equal
protection of law under the 1st, 5th and 14th Amendments to
the United States Constitutions when the trial courts
ruling/conclusions were contrary to its findings written in its
opinion.
III. Discussion
{¶ 5} Because they involve related issues, we address Hillman's first and second
assignments of error together. In his first assignment of error, Hillman asserts the trial
court's disposition of his accusation by affidavit did not comply with R.C. 2935.09 and
2935.10. Hillman's second assignment of error alleges the trial court's disposition of his
affidavit violated his constitutional rights because the disposition was contrary to the
court's findings. These assignments of error lack merit.
{¶ 6} Pursuant to R.C. 2935.09(D), a private citizen may file with a "reviewing
official" an affidavit alleging a criminal offense. For the purpose of R.C. 2935.09, a
"reviewing official" is 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." R.C. 2935.09. When such an accusatory affidavit is filed, R.C. 2935.10
governs the procedure to be followed. See State ex rel. Dominguez v. State, 129 Ohio
St.3d 203, 2011-Ohio-3091, ¶ 2 (R.C. 2935.09 "must be read in pari materia with
R.C. 2935.10"). R.C. 2935.10(A) states:
No. 16AP-571 3
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.
Thus, a judge reviewing an accusation by affidavit is only permitted to take one of two
actions: (1) issue a warrant, or (2) refer the matter to the prosecutor for investigation if
the judge has reason to believe that the affidavit lacks a meritorious claim, i.e. probable
cause, or was not made in good faith. Hillman v. Larrison, 10th Dist. No. 15AP-730,
2016-Ohio-666, ¶ 14, citing State ex rel. Brown v. Jeffries, 4th Dist. No. 11CA3275, 2012-
Ohio-1522.
{¶ 7} We review a judge's decision not to issue a warrant based on an accusation
by affidavit filed pursuant to R.C. 2935.09 and 2935.10 under the abuse of discretion
standard. In re Slayman, 5th Dist. No. 08CA70, 2008-Ohio-6713, ¶ 19. An abuse of
discretion is more than merely an error of judgment; it connotes a decision that is
unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217,
219 (1983).
{¶ 8} Here, the judge who reviewed Hillman's July 8, 2016 affidavit concluded
that the affidavit lacks a meritorious claim. Thus, he did not issue a warrant and referred
the matter to the county prosecutor for investigation. Hillman argues that the trial court
erred because his affidavit established probable cause to believe the Clerk of Courts
engaged in felonious conduct, and that, even if it did not establish probable cause, the trial
court judge should have held a probable cause hearing to gather information prior to
deciding not to issue a warrant. Hillman's arguments are unpersuasive.
{¶ 9} According to Hillman, he was denied due process because he was not
granted a hearing. Under R.C. 2935.10, however, a judge has only two options in
connection with his or her review of an accusation by affidavit: He or she may issue a
warrant based on the affidavit or refer the matter to the prosecutor for investigation.
No. 16AP-571 4
Larrison. Therefore, we reject Hillman's argument that the trial court erred by not
holding a probable cause hearing regarding his allegations.
{¶ 10} Additionally, we find that the trial court did not abuse its discretion in
finding that Hillman's July 8, 2016 affidavit lacks a meritorious claim. That affidavit
alleged the Clerk of Courts, in an attempt to hinder Hillman's access to justice, violated
multiple criminal statutes by intentionally "misfiling" as a civil case his affidavit regarding
police officer perjury. Specifically, Hillman alleged the Clerk of Courts committed the
following felonious acts: attempted to intimidate him in a criminal case, in violation of
R.C. 2921.04; tampered with evidence, in violation of R.C. 2921.12; obstructed justice, in
violation of R.C. 2921.32; and obstructed official business, in violation of R.C. 2921.31.
The trial court determined that, considering Hillman's factual allegations and the nature
of the Clerk of Courts' duties, his claim of criminal conduct lacks legal merit. We agree.
{¶ 11} Hillman suggests that the Clerk of Courts conspired to protect the police
officer from Hillman's perjury accusations by "misfiling" his accusation by affidavit as a
civil case and not as a miscellaneous or criminal case. He asserts that the misfiling
resulted in court fees being improperly assessed against him. However, a "clerk of courts
is a ministerial officer, one who performs a fixed and designated function that involves no
exercise of discretion." State v. Wilson, 102 Ohio App.3d 467, 471 (2d Dist.1995); Lingo v.
State, 138 Ohio St.3d 427, 2014-Ohio-1052, ¶ 34 ("A clerk of courts has no discretion.").
He or she functions as an arm of the court, performing such duties as retaining custody of
the court's records, filing the court's papers, and collecting costs. Wilson; Lingo; State ex
rel. McKean v. Graves, 91 Ohio St. 23, 24 (1914). "The clerk is not a judicial officer, and
cannot perform judicial duties or act in exercise of the judicial power." Wilson at 472.
Thus, while a clerk may collect costs, only a court may assess costs. Lingo.
{¶ 12} Furthermore, neither R.C. 2935.09 nor 2935.10 mandates a certain initial
case designation when an accusation by affidavit is filed. While R.C. 2935.09 and 2935.10
set forth the basic mechanism for such an affidavit to reach a reviewing official for
disposition, they do not detail any requirements regarding how the matter is otherwise
designated. Nor has Hillman shown that the assignment of a civil case number to his
affidavit was in contravention of a clear directive from the trial court. Regardless of how
the matter was designated, the Clerk of Courts took the necessary steps to ensure that
No. 16AP-571 5
Hillman's affidavit accusing the police officer of perjury was submitted to a judge for
review, as required by R.C. 2935.09 and 2935.10. Thus, the reviewing judge had reason to
believe that Hillman's accusation against the Clerk of Courts lacked merit.
{¶ 13} The trial court did not abuse its discretion deciding to refer the matter to a
prosecutor for investigation instead of issuing a warrant based on Hillman's accusation by
affidavit. Therefore, we overrule Hillman's first and second assignments of error.
IV. Disposition
{¶ 14} Having overruled Hillman's first and second assignments of error, we affirm
the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
KLATT, LUPER SCHUSTER, and BRUNNER, JJ.