State ex rel. Brown v. Jeffries

[Cite as State ex rel. Brown v. Jeffries, 2012-Ohio-1522.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ROSS COUNTY
STATE EX. REL. STEVEN BROWN, : Case No. 11CA3275
:
Plaintiff-Appellant, :
: DECISION AND
v. : JUDGMENT ENTRY
:
WARDEN JEFFRIES, ET AL., :
: RELEASED 03/28/12
:
Defendant-Appellees. :
______________________________________________________________________
APPEARANCES:
Steven S. Brown, Lucasville, Ohio, pro se.
Michael Dewine, Ohio Attorney General, and Peter L. Jamison, Ohio Assistant Attorney
General, Columbus, Ohio, for appellees.
______________________________________________________________________
Harsha, J.
{¶1} Steven Brown appeals the trial court’s decision not to issue warrants
based on his affidavit for a criminal complaint, arguing that the court abused its
discretion by failing to hold a hearing before deciding whether his affidavit had merit, i.e.
established probable cause. R.C. 2935.10 applies in this case and requires a judge to
summarily issue a warrant or refer the matter to the prosecutor for further investigation.
Accordingly, we reverse.
I. FACTS
{¶2} While incarcerated in Ross Correctional Institute, Steven Brown filed an
affidavit with the Ross County Court of Common Pleas seeking the issuance of criminal
warrants under R.C. 2935.09 against several prison officials for committing both felonies
and misdemeanor crimes against him. Without holding a hearing, or referring the
Ross App. No. 11CA3275 2
matter to the prosecuting attorney for investigation, the trial court found Brown’s affidavit
was “not meritorious”, i.e. did not constitute probable cause to believe any of the named
prison officials had committed criminal acts. Accordingly, the trial court denied Brown’s
request to issue criminal warrants. This appeal followed.
II. ASSIGNMENT OF ERROR
{¶3} Brown presents one assignment of error for our review: 1
{¶4} “THE LOWER COURT ERRED AND ABUSED ITS DISCRETION WHEN
IT DISMISSED THE CASE WITHOUT A PROBABLE CAUSE HEARING.”
III. CITIZEN AFFIDAVITS
{¶5} Brown argues the trial court abused its discretion by terminating this
matter without first holding an evidentiary hearing to determine whether his affidavit
established probable cause to initiate a criminal action. Brown also claims that he was
denied the equal protection of the laws and his First Amendment rights under the United
States Constitution. However, his assignment of error and brief focus on
nonconstitutional issues. Likewise, we will do the same.
{¶6} A private citizen may initiate the arrest or prosecution of a person charged
with committing an offense if the citizen complies with the requirements of R.C.
2935.09(D). State v. Mbodji, 129 Ohio St.3d 325, 2011-Ohio-2880, 951 N.E.2d 1025, ¶
6. R.C. 2935.09(D) provides: “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
1
Brown did not specifically designate this statement as an “Assignments of Error” in his brief.
Nonetheless, we recognize it as one.
Ross App. No. 11CA3275 3
a complaint should be filed by the prosecuting attorney * * *.” A “reviewing official” is a
judge, the prosecuting attorney, or a magistrate. R.C. 2935.09(A).2
{¶7} The Supreme Court has consistently held that “‘R.C. 2935.09 does not
mandate prosecution of all offenses charged by affidavit.’” State ex rel. Boylen v.
Harmon, 107 Ohio St.3d 370, 2006-Ohio-7, 839 N.E.2d 934, ¶ 6 (per curiam). R.C.
2935.09 “‘must be read in pari materia with R.C. 2935.10, which prescribes the
subsequent procedure to be followed.’” Id.{¶8} Under R.C. 2935.10(A) if the affidavit charges the commission of a felony,
the judge, clerk, or magistrate, “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.’ ‘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.’” Boylan, supra, at ¶
7. Under R.C. 2935.10(B) if the affidavit charges the commission of a misdemeanor the
judge, clerk, or magistrate may: “(1) Issue a warrant for the arrest of such person * * * ”
or “(2) Issue summons * * * commanding the person against whom the affidavit or
complaint was filed to appear forthwith, or at a fixed time in the future, before such court
or magistrate.” Here, because Brown’s affidavit alleges various felonies and
misdemeanors, both R.C. 2935.10(A) and (B) apply to his case.
{¶9} In Boylen the Supreme Court of Ohio determined that the procedure
calling for a probable cause hearing under Crim.R. 4(A) was applicable where affidavits
2
This subsection was amended in 2006 to substitute the words “reviewing official” for the former
language that referred to “a judge, clerk of court, or magistrate”. R.C. 2935.10 apparently has not been
amended to reflect this change. See paragraph 8.
Ross App. No. 11CA3275 4
are filed with a valid criminal complaint under Crim.R. 3. It concluded Crim.R. 4(A) does
not apply where only affidavits are filed under R.C. 2935.09. Boylen, supra, at ¶ ¶9 &
10. Rather the court pointed out that R.C. 2935.10 applies and affords the reviewing
official only two options: 1) issue a warrant or 2) refer the matter to the prosecutor for
investigation if there is a belief that the affidavit lacks a meritorious claim, i.e. probable
cause, or was not made in good faith. Id. at ¶ 7. See also State v. Slayman, 5th Dist.
No. 08CA70, 2008-Ohio-6713, ¶ 21 and State v. Boylen, 5th Dist. No. 2005CA00164,
2006-Ohio- 2030, ¶ 21.
{¶10} R.C. 2935.10 does not provide the trial court with the third option of
summarily dismissing the matter. However, that is the course of action taken here.
Accordingly, we must reverse the court’s judgment and remand with instructions to refer
the matter to the prosecuting attorney for investigation.
JUDGMENT REVERSED
AND REMANDED.
Ross App. No. 11CA3275 5
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS REVERSED AND REMANDED and that
Appellees shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Ross
County Court of Common Pleas to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as
of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure. Exceptions.
Kline, J. & McFarland, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________
William H. Harsha, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.