Independence v. Ismail

[Cite as Independence v. Ismail, 2022-Ohio-3742.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
CITY OF INDEPENDENCE, :
Plaintiff-Appellee, :
No. 111337
v. :
THERESA A. ISMAIL, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: VACATED AND REMANDED
RELEASED AND JOURNALIZED: October 20, 2022
Criminal Appeal from the Garfield Heights Municipal Court
Case No. CRB-2000816
Appearances:
William T. Doyle, Prosecuting Attorney, for appellee.
Cullen Sweeney, Cuyahoga County Public Defender, and
John T. Martin, Assistant Public Defender, for appellant.
MICHELLE J. SHEEHAN, J.:
Defendant-appellant Theresa Ismail was convicted after trial of
attempting to pass a bad check in violation of R.C. 2903.02 and 2913.11 in the
Garfield Heights Municipal Court. The complaint filed in the municipal court
charged a felony offense. Because the municipal court did not have jurisdiction to
resolve a felony complaint by trial, we vacate Ismail’s convictions and remand this
matter to the municipal court for further proceedings upon the complaint.
On July 9, 2020, a city of Independence (“city”) police officer filed a
criminal complaint against Ismail alleging the crime of attempting to pass bad
checks. The complaint reads in pertinent part that on December 6, 2019, in the city
of Independence, Ohio, Ismail:
Did purposely or knowingly, and when purpose or knowledge is
sufficient for the commission of an offense, shall engage in conduct
that, if successful, would constitute or result in the offense To Wit:
handed her attorney a check for $7,500 that was deposited and no
account was located. The account number was one number off and
the account did not have enough in the account.
Contrary to and in violation of sections 2923.02 of the Ohio Revised
Code (or Local Ordinance.) Attempt, a Misdemeanor of the 1st degree.
On November 15, 2021, the municipal court called the case for trial.
Prior to trial, Ismail renewed her previous motions to dismiss arguing that the
complaint did not state a criminal offense.1 The city moved the trial court to amend
the complaint to include reference to R.C. 2913.11. The trial court granted the city’s
motion and denied Ismail’s motion to dismiss.
1 The trial court denied two previously filed motions to dismiss that argued the complaint
did not comply with Crim.R. 3 and failed to state a criminal offense.
At the conclusion of the trial, the jury returned a verdict form finding
Ismail guilty of the offense “as charged.” On November 15, 2021, the trial court
journalized the verdict stating Ismail was convicted of an attempt to pass a bad
check. Neither the jury’s verdict form or the trial court’s journal entry indicated the
level of offense of which Ismail was convicted. On January 27, 2022, the trial court
sentenced Ismail to a fine, suspended a jail sentence, and ordered restitution. Ismail
raises several assignments of error; however, we need only address her first
assignment of error to resolve her appeal.2 The first assignment of error reads:
The trial court lacked jurisdiction to try the criminal complaint in this
case.
Within this assignment of error, Ismail challenges the subject-matter
jurisdiction of the municipal court.3 She argues the municipal court did not have
the jurisdiction to proceed to trial because the complaint filed in this case alleged a
felony offense, citing State v. Brumfield, 1st Dist. Hamilton No. C-810070 (Dec. 2,
1981). The city argues that it had the discretion to charge the offense as a
2 Ismail’s second through sixth assignments of error are listed withing the appendix.
3 In her motions to dismiss the complaint made prior to trial, Ismail argued that the court
did not have jurisdiction because the complaint did not state a criminal offense. She raises
a different reason the trial court lacked jurisdiction in this appeal. “Subject-matter
jurisdiction involves a court’s power to hear a case. As such, the issue can never be waived
and may be raised at any time.” State v. Schuler, 2019-Ohio-1585, 135 N.E.3d 325, ¶ 20
(12th Dist.), citing State v. Mbodji, 129 Ohio St.3d 325, 2011-Ohio-2880, 951 N.E.2d 1025,
¶ 10.
misdemeanor and that it exercised that discretion in this case by charging a
misdemeanor offense.
Ismail’s argument requires us to review the complaint, which we review
de novo. Cleveland v. Daniels, 8th Dist. Cuyahoga No. 106136, 2018-Ohio-4773,
¶ 35. A municipal court has subject-matter jurisdiction over misdemeanor criminal
cases. Mbodji at ¶ 11. R.C. 1901.20(A) provides in relevant part:
The municipal court has jurisdiction to hear misdemeanor cases
committed within its territory and has jurisdiction over the violation
of any ordinance of any municipal corporation within its territory,
including exclusive jurisdiction over every civil action concerning a
violation of a state traffic law or a municipal traffic ordinance.
When a felony offense is charged within the municipal court, the court
has limited jurisdiction over the case. R.C. 1901.20(B) reads:
The municipal court has jurisdiction to hear felony cases committed
within its territory. In all felony cases, the court may conduct
preliminary hearings and other necessary hearings prior to the
indictment of the defendant or prior to the court’s finding that there
is probable and reasonable cause to hold or recognize the defendant
to appear before a court of common pleas and may discharge,
recognize, or commit the defendant.
In order to determine whether the municipal court had jurisdiction to
try the case, we need to determine what level of offense the complaint alleged.
Crim.R. 3(A) provides that “the complaint is a written statement of the essential
facts constituting the offense charged.” “The primary purpose of the charging
instrument in a criminal prosecution is to inform the accused of the nature of the
offense with which he or she is charged.” Cleveland v. Simpkins, 192 Ohio App.3d
808, 2011-Ohio-1249, 950 N.E.2d 982, ¶ 6 (8th Dist.).
After being amended, the complaint alleged Ismail violated
R.C. 2903.02 and 2913.11 where Ismail “handed her attorney a check for $7,500 that
was deposited and no account was located.” R.C. 2913.11(E) specifies that “[i]f the
check or checks or other negotiable instrument or instruments are for the payment
of seven thousand five hundred dollars or more but less than one hundred fifty
thousand dollars, passing bad checks is a felony of the fourth degree.” By including
the amount of the check as being $7,500 in the written statement of facts, the
complaint alleged Ismail committed a violation that was a felony of the fourth
degree. By including the attempt statute, R.C. 2923.02, the complaint charged the
“next lesser degree than the offense attempted.” Accordingly, the amended
complaint charged Ismail with the attempt to pass a bad check in the amount of
$7,500, a felony of the fifth degree.
Despite alleging facts that describe a felony offense, the complaint
includes language that states the charge is a misdemeanor of the first degree. The
city argues that it had discretion to charge any level of an offense and did so in this
case. See, e.g., Westlake v. Wilson, 8th Dist. Cuyahoga No. 96948, 2012-Ohio-2192,
¶ 29 (“[T]he decision whether to prosecute and what charge to file is within the
prosecutor's discretion.”). We do not disagree that the city could exercise its
decision to prosecute Ismail for any of several levels of offense based upon the facts
contained in the complaint. But that decision must be reflected in the facts alleged
within the complaint, and the facts alleged in this complaint constitute a felony
offense.4
Because the complaint alleged a felony offense, the municipal court
did not have jurisdiction to resolve the complaint at trial. State v. Nelson, 51 Ohio
App.2d 31, 37, 365 N.E.2d 1268 (8th Dist.1977) (“There was no complaint or other
charging instrument before the municipal court charging the appellees with a
misdemeanor; therefore, the court lacked jurisdiction to try them on the
misdemeanor charge.”); Brumfield, 1st Dist. Hamilton No. C-810070; State v.
Craig, 1st Dist. Hamilton No. C-850444, 1986 Ohio App. LEXIS 5891 (Mar. 12,
1986).
Appellant’s first assignment of error is sustained. Our resolution of
the first assignment of error renders consideration of the remaining assignments of
error presented moot. App.R. 12(A)(1)(c). We vacate Ismail’s conviction and
remand the case to the municipal court for further proceedings upon the complaint
pursuant to R.C. 1901.20(B).
Judgment vacated, and case remanded.
It is ordered that appellant recover of appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
4 In order to charge a misdemeanor of the first degree, the city could have simply not
included the amount of the check.
It is ordered that a special mandate issue out of this court directing the
municipal court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
__________________________________
MICHELLE J. SHEEHAN, JUDGE
FRANK DANIEL CELEBREZZE, III, P.J., and
LISA B. FORBES, J., CONCUR
APPENDIX
Appellant’s second through fifth assignments of error read:
Assignment of Error II:
The sentence imposed is statutorily excessive because the defendant was convicted
of a second-degree misdemeanor punishable by a maximum jail term of 90 days and
a maximum fine of $750.00.
Assignment of Error III:
There should be no restitution ordered because the offense of conviction was one of
attempted passing of a bad check, an inchoate crime.
Assignment of Error IV:
Defendant received ineffective assistance of counsel when her trial attorney failed to
move to dismiss the case for want of speedy trial.
Assignment of Error V:
The trial court plainly erred in not dismissing the instant case for want of speedy
trial.
Assignment of Error VI:
The trial court erred in admitting the bank records solely on the testimony of the
investigating detective.