Summary
In Spencer, the trial court dismissed the pending misdemeanor charges following the defendant's related felony conviction.
Summary of this case from State v. EbersoleOpinion
No.: 2018 TRC 025584
06-06-2019
CITY OF CLEVELAND, Plaintiff v. Robert SPENCER, Defendant
Attorney Mark Jablonski, Olmsted Falls, appeared for Plaintiff and Attorney Joseph M. Giersz, appeared for Defendant.
Attorney Mark Jablonski, Olmsted Falls, appeared for Plaintiff and Attorney Joseph M. Giersz, appeared for Defendant.
JUDGMENT ENTRY
JUDGE EMANUELLA GROVES Facts
The facts in this case are undisputed. On August 23, 2018, the defendant was arrested by an Ohio State Highway Patrol Officer for alleged violations of RC 4511.19, driving while impaired, a misdemeanor and 2921.31(B) failure to comply and 2921.31(A) obstruction of official business, which were charged as felonies. On August 27, 2018, a complaint for driving while impaired was filed in Cleveland Municipal Court. On September 18, 2018, the defendant was indicted in Cuyahoga County Court of Common Pleas for the two felony offenses. On January 29, 2019 the defendant plead to the felony failure to comply and the obstruction charge was dismissed. In the meantime, the misdemeanor offense, which arose out of the same act, remained pending in this court. As a result of the felony conviction, the defendant filed a Motion to Dismiss the pending misdemeanor pursuant to Criminal Rules 1(B), 5(B)(1) and 48(B).
Findings
Only upon good cause shown should misdemeanor and felony offenses arising out of the same incident be adjudicated in separate courts. The mere fact that charges from the same indictment are filed separately in different counts does mean they must remain separate through adjudication. As a matter of fact, those charges must be joined in the Court of Common Pleas just as they would had the charges been initiated in the municipal court and then bound over. The requirement that the misdemeanor and felony charges be together is not limited to instances where the felony complaint is subject to a preliminary hearing. Criminal Rule 5(B)(1) mandates that the misdemeanor complaint be bound over or transferred with the felony case. The manner in which the felony and misdemeanor charges are initiated does not affect the mandate set forth in Criminal Rule 5(B)(1) that the misdemeanor offense must be bound over or transferred with the felony case.
Ohio Crim.R. 5(B)(1).
Yes, the prosecutor has discretion in the filing of criminal charges. However, the prosecutor must exercise his discretion within the mandates set forth in the Rules of Criminal Procedure. Here, the prosecutor must demonstrate good cause to keep this complaint in the municipal court, while the companion felony charges have been adjudicated separately. No good cause has been shown. Instead, the prosecutor has argued these facts are not subject to Criminal Rule 5(B)(1). In support of its position the prosecutor cites:
C.K. v. State , 145 Ohio St. 3d 322, 326, 2015 -Ohio-421, 49 N.E.3d 1218 (finding that prosecutors have discretion to defer or dismiss charges); United States v. Armstrong , 517 U.S. 456, 464, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996) ("the decision whether or not to prosecute and what charges to file or bring before a grand jury, generally rests entirely in [a prosecutor's] discretion.")
It is clear from the language of the rule that it does not apply to the procedural posture in this case because there was neither a preliminary hearing nor a waiver of the preliminary hearing in regards to the municipal court felony. Rather, the prosecutor dismissed the municipal court felony after the grand jury returned an indictment for the same charge before a preliminary hearing was conducted or waived. Moreover, the procedural posture of this case does not fall within Crim.R. 5(B), as the rule states a "preliminary hearing shall not be held* * *if the defendant is indicted."
Crim.R. 5(B) applies to situations where the state files related felony and misdemeanor charges in the municipal court, and requires the misdemeanor charges to be bound over with the related felony charges. The rule does not address the situation of this case where the state files misdemeanor charges in municipal court and the grand jury returns a separate indictment on related felony charges.
Pl's Response to Defendant's Motion to Dismiss at 3, citing State v. Parker , 2017-Ohio-1389, 89 N.E.3d 152, ¶12 (2d Dist.). (Emphasis added)
The court rejects the holding in Parker because it failed to apply the basic principle established in the Rule of Construction, Rule 1(B). The Rule of Construction requires criminal rules to be, "construed and applied to secure the fair, impartial, speedy and sure administration of justice, simplicity in procedure and the elimination of unjustifiable expense and delay.
State v. Parker , 2017-Ohio-1389, 89 N.E.3d 152, and at ¶ 17 (2d Dist.)
Crim.R. Proc. 1(B).
Additionally, it is well-established that section headings do not constitute any part of the law. Criminal Rule 5(B) is headed, "Preliminary hearing in felony cases; procedure." However, the text of the rule in part reads, "Except upon good cause shown, any misdemeanor, other than a minor misdemeanor, arising from the same act or transaction involving a felony shall be bound over or transferred with the felony case." This language is quite clear. The misdemeanor should be with the felony case. The only time the misdemeanor should remain in municipal court is upon good cause. This direction does not provide for discretion.
R.C. § 1.01 ("[Except as provided in Ohio's adoption of the UCC], Title, Chapter, and section headings and marginal General Code section numbers do not constitute any part of the law as contained in the ‘Revised Code’).
Clearly, the intent of the rule is to ensure all charges, including the misdemeanor charge be adjudicated together. Otherwise, the defendant, his or her attorney, and the witnesses must appear in two courts for charges that arose out of the same incident. Additionally, two separate prosecutors must handle the charges, rather than one. Consequently, unjustifiable delay and expenses incur. Moreover, if convicted in both counts, the defendant may be subject to two community controls. These consequences are in direct contradiction of the purpose of Criminal Rule 1(B).
See also State v. Parker , supra at ¶ 17. ("We ... are mindful of the potential problems that can arise in this type of situation. For example, having related cases in two separate courts can result in a violation of the the [sic ] speedy trial provisions of R.C. 2945.71. Additionally, the doctrines of res judicata and double jeopardy may be implicated in such split prosecutions.).
Also, to only apply the requirement to cases that are initiated in the municipal court is very unfair and quite arbitrary. Why should only a defendant whose charges were subject to a preliminary hearing be afforded consolidation of his charges to the Court of Common Pleas? No justifiable explanation can be provided. Certainly, application of the Rules of Procedure should not be arbitrary neither should the application cause unjustifiable inconvenience.
Failure to demonstrate good cause to retain this charge in the municipal court must result in the dismissal of the charge. The failure to do so violated both Criminal Rule 1(B) and 5(B)(1). For these reasons, this Court grants the Defendant's Motion to Dismiss.